2023 (1) TMI 372 - AT - Income Tax

Penalty u/s 271(1)(c) - defective notice u/s 274 - Non strike of irrelevant part - notionally computed commission paid to eam the long term capital gains without establishing any fact that the assessee had actually paid any commission - HELD THAT - From the perusal of the notice issued under section 274 r/w section 271(1)(c) of the Act we find that the Ao did not strike off any of the twin charges i.e. concealment of particulars of income or furnishing of inaccurate particulars of income. The case of the assessee is squarely covered by the decision of Mohd. Farhan A. Shaikh 2021 (3) TMI 608 - BOMBAY HIGH COURT wherein the Larger Bench of the Hon ble Court has held that the defect in the notice by not striking off the irrelevant matter would vitiate the penalty proceedings. Accordingly we reverse the findings of the lower authorities and quash the penalty order passed under section 271(1)(c) - Accordingly the AO is directed to delete the penalty levied under section 271(1)(c) - Appeal by the assessee is allowed.

Summary

Issues:
Challenge to penalty order under section 271(1)(c) of the Income Tax Act, 1961.

Analysis:

Issue 1: Violation of natural justice in notice issued under section 274 read with section 271

The assessee contended that the notice issued under section 274 read with section 271 of the Income-tax Act, 1961 was void ab initio due to violation of natural justice. The assessee argued that the notice did not specify whether the penalty was for concealment of income or furnishing inaccurate particulars of income. The tribunal referred to a relevant decision of the Hon'ble Jurisdictional High Court and held that such defects in the notice would vitiate the penalty proceedings. Consequently, the tribunal reversed the findings of the lower authorities and quashed the penalty order passed under section 271(1)(c) of the Act. The tribunal directed the Assessing Officer to delete the penalty levied, amounting to Rs.9,56,601.

Issue 2: Levy of penalty without considering voluntary disclosure of income

The assessee also argued that the penalty was confirmed without considering the fact that voluntary disclosure of long-term capital gains income was made during the filing of the revised return of income and assessment proceedings. However, the tribunal did not delve into this issue on merits as it quashed the penalty order based on the violation of natural justice in the notice. Therefore, this aspect of the matter was deemed academic and infructuous.

Conclusion:
The appeal by the assessee challenging the penalty order under section 271(1)(c) of the Income Tax Act, 1961 was allowed by the tribunal. The penalty of Rs.9,56,601 was quashed due to the defect in the notice issued by the Assessing Officer. The tribunal directed the Assessing Officer to delete the penalty amount. Other issues raised by the assessee were not addressed on merits as the penalty order was quashed for the procedural defect.