1991 (5) TMI 88 - AT - Income Tax

Summary

Issues:
Appeal against penalty under s. 273(2)(aa) of the IT Act, 1961; Time-barred appeal; Satisfaction of ITO for default under s. 273(2)(c); Levy of penalty under s. 273(2)(aa); Lack of notice and opportunity for penalty under s. 273(2)(aa); Interpretation of s. 292B; Nature of penal action against default; Distinction between s. 273(2)(aa) and s. 273(2)(c); Requirement of notice and opportunity before penalty imposition; Legality of penalty under s. 273(2)(aa); Curability of defects under s. 292B.

Analysis:
The appeal was time-barred by 7 days, but the delay was condoned due to the misplacement of the order by the assessee. The ITO had recorded satisfaction for default under s. 273(2)(c) in the assessment order, leading to the issuance of a notice under s. 274. The assessee argued that no notice under s. 273(2)(c) was received and presented evidence of compliance with tax obligations. However, the ITO concluded that a violation under s. 273(2)(aa) had occurred and imposed a penalty of Rs. 11,400. The CIT(A) upheld the penalty, citing s. 292B to cure any irregularities.

The main contention before the tribunal was the lack of notice and opportunity for the penalty under s. 273(2)(aa). The assessee argued that without proper notification and chance to defend, the penalty imposition was unlawful. The tribunal agreed, emphasizing that penal action requires the ITO's satisfaction, which must be communicated to the assessee. Mentioning the wrong provision of law in the order or notice is a curable defect, but the nature of the default must be clear to the assessee to ensure a fair trial.

The tribunal found that the distinct nature of offenses under s. 273(2)(aa) and s. 273(2)(c) was crucial. As the assessee was never informed or given an opportunity to address the specific default under s. 273(2)(aa), the penalty imposition was deemed invalid. The tribunal rejected the argument that the CIT(A) hearing on the matter cured the defect, emphasizing the foundational importance of proper notice and opportunity in penal proceedings.

Ultimately, the tribunal held that the penalty under s. 273(2)(aa) was legally unsustainable due to the lack of recorded satisfaction by the ITO and the absence of notice to the assessee. The order of the CIT(A) was set aside, and the penalty under s. 273(2)(aa) was revoked, leading to the allowance of the appeal. The tribunal concluded that remanding the case to the ITO would serve no purpose as the foundational defect could not be rectified.