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2017 (2) TMI 219 - ITAT PUNE

2017 (2) TMI 219 - ITAT PUNE - TMI - Penalty levied under section 271(1)(c) - non-recording of proper satisfaction by the Assessing Officer while completing assessment - Held that:- Assessing Officer while completing assessment and making disallowance on each account had stated that penalty under section 271(1)(c) of the Act needs to be initiated and the same was so initiated by issue of notice under section 274 r.w.s. 271(1)(c) of the Act. However, the Assessing Officer has failed to give satis .....

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Shri Pramod Shingte For The Revenue : Shri Suhas Kulkarni ORDER PER SUSHMA CHOWLA, JM: The cross appeals filed by the assessee and the Revenue are against order of CIT(A)-2, Nashik, dated 12.12.2014 relating to assessment year 2009-10 against penalty levied under section 271(1)(c) of the Income Tax Act, 1961 (in short the Act ). 2. The cross appeals filed by the assessee and Revenue were heard together and are being disposed of by this consolidated order for the sake of convenience. 3. The asses .....

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ion made in the quantum order. 2. On the facts and in the circumstances of the case and in law, the Learned Assessing Officer has erred in levying a penalty of ₹ 18,81,903/- u/s 271 (1)(c) of the Income Tax Act, 1961 which was reduced by Learned CIT to the tune of ₹ 12,82,190/- for the addition made by Learned Assessing Officer which are highly debatable and arising out of surmises and guess work and are not supported by any cogent evidences, and therefore, entire penalty needs to be .....

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ns for which penalty proceedings are not even initiated. 4. The Revenue in ITA No. 238/PUN/2015 has raised the following grounds of appeal :- 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A)-2, Nashik has erred in deleting the penalty levied on the interest element of ₹ 2,05,461/-, in spite of the fact that the Ld.CIT(A) had confirmed the quantum addition made by the AO. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A)-2, Nashik .....

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, the order of the Ld. CIT(A)-II, Nashik be cancelled on the above issue and that of the AO be restored. 5. The cross appeals filed by the assessee and the Revenue are against levy of penalty under section 271(1)(c) of the Act. 6. The learned Authorized Representative for the assessee at the outset pointed out that in case ground of appeal No.3 raised by the assessee is decided i.e. against recording of any satisfaction regarding furnishing of inaccurate particulars of income or concealment of i .....

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f assessee on the following accounts. 1. Disallowance of Transport expenses, depreciation and interest over truck - Rs.7,03,747/- 2. Disallowance out of salary - Rs.4,83,120/- 3. Disallowance out of interest over cash withdrawn - Rs.2,05,461/- 4. Disallowance of interest over SOP - Rs.1,50,000/- 5. Disallowance of interest claimed pertaining to house loan - Rs.11,94,186/- 6. Out of telephone expenses - ₹ 6,000/- 7. Out of vehicle expenses - Rs.1,98,852/- 8. On a/c of construction account - .....

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assessment, the Assessing Officer directs issue notice under section 274 r.w.s. 271(1)(c) of the Income Tax Act, 1961. Thereafter, order was passed under section 274 r.w.s. 271(1)(c) of the Act, wherein the Assessing Officer took note that the addition in respect of five of the items was upheld by the CIT(A) after giving effect to the order of CIT(A). A notice was issued to the assessee to show cause as to why penalty should not be levied. The assessee requested that the said penalty proceedings .....

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and the assessee was held liable for concealment at ₹ 18,81,903/-. 9. The CIT(A) has partly upheld the levy of penalty under section 271(1)(c) of the Act and partly allowed certain relief to the assessee, against which both the assessee and the Revenue are in appeal. 10. The first issue which has arisen for adjudication is ground of appeal No.3 raised by the assessee i.e. non-recording of proper satisfaction by the Assessing Officer while completing assessment. The perusal of assessment or .....

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ssue arising in the present appeal is squarely covered by the ratio laid down by the Pune Bench of Tribunal in Kanhaiyalal D. Jain Vs. ACIT in ITA Nos.1201 to 1205/PN/2014, relating to assessment years 2003-04 to 2007-08, order dated 30.11.2016 and in Nandkishor Tulsidas Katore Vs. ACIT in ITA Nos.2174 to 2180/PN/2014, relating to assessment year 2002-03 to 2008-09, order dated 14.12.2016. The learned Authorized Representative for the assessee also pointed out that even in the notice issued unde .....

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ld as under:- 13. We have heard the rival contentions and perused the record. The issue arising in the present bunch of appeals is jurisdictional issue of levy of penalty under section 271(1)(c) of the Act. The requirement of section is that where the Assessing Officer or the Commissioner of Appeals or the Principal Commissioner or Commissioner, in the course of any proceedings under the Act, is satisfied that any person has concealed the particulars of his income or furnished inaccurate particu .....

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dings also, the concerned Officer has come to a finding that as to whether the person has concealed the particulars of his income or furnished inaccurate particulars of such income and thereafter, levy the penalty accordingly. The word used between the two acts i.e. concealment of particulars of income and furnishing of inaccurate particulars of such income is or . So the penalty levied by the concerned Officer is on satisfaction of any of the limbs and not the satisfaction of both the limbs. Wh .....

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of provisions of section 271(1)(c) of the Act is the satisfaction to be recorded by the Assessing Officer, which admittedly, has to be during the course of assessment proceedings. So, where the assessment proceedings are pending, then the Assessing Officer has to apply his mind and on being satisfied, he has to give a finding that the assessee before him has either concealed the particulars of income or furnished inaccurate particulars of income in respect of the issue before him. Thereafter, th .....

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urther specified while completing penalty proceedings and the Assessing Officer has to come to a conclusion as to whether it is case of concealment of income or furnishing of inaccurate particulars of income. The question which further arises where the satisfaction recorded by the Assessing Officer and the notice issued thereafter is without application of mind, then can the subsequent order passed levying penalty be held to be valid?. The Hon ble Karnataka High Court in CIT & Anr. Vs. Manju .....

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274, they could conveniently refer to the said order which contains the satisfaction of the authority which has passed the order. However, if the existence of the conditions could not be discerned from the said order and if it is a case of relying on deeming provision contained in Explanation-1 or in Explanation-1(B), then though penalty proceedings are in the nature of civil liability, in fact, it is penal in nature. In either event, the person who is accused of the conditions mentioned in Sect .....

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rement of law when the consequences of the assessee not rebutting the initial presumption is serious in nature and he had to pay penalty from 100% to 300% of the tax liability. As the said provisio ns have to be held to be strictly construed, notice issued under Section 274 should satisfy the grounds which he has to meet specifically Otherwise, principles of natural justice is offended if the show cause notice is vague. On the basis of such proceedings, no penalty could be imposed on the assesse .....

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either the one or the other cannot be sustained in law. It is needless to point out satisfaction of the existence of the grounds mentioned in Section 271(1)(c) when it is a sine qua non for initiation or proceedings, the penalty proceedings should be confined only to those grounds and the said grounds have to be specifically stated so that the assessee would have the opportunity to meet those grounds. After, he places his version and tries to substantiate his claim, if at all, penalty is to be i .....

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osed on the same ground. Where the basis of the initiation of penalty proceedings is not identical with the ground on which the penalty was imposed, the imposition of penalty is not valid. The validity of the order of penalty must be determined with reference to the information, facts and materials in the hands of the authority imposing the penalty at the time the order was passed and further discovery of facts subsequent to the imposition of penalty cannot validate the order of penalty which, w .....

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f furnishing of inaccurate particulars. The Apex Court in the case of Ashok Pai reported in [2007] 292 ITR 11 (SC) at page 19 has held that concealment of income and furnishing inaccurate particulars of income carry different connotations. The Gujarat High Court in the case of Manu Engineering Works reported in [1980] 122 ITR 306 (Guj) and the Delhi High Court in the case of CIT v. Virgo Marketing P. Ltd. reported in [2008] 171 Taxman 156, has held that levy of penalty has to be clear as to the .....

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Officer is to be satisfied in the course of proceedings that there is either concealment of income or furnishing of inaccurate particulars of income under clause (c) to section 271(1) of the Act. It has been categorically held that concealment of income and furnishing of inaccurate particulars of income are different. The Hon ble High Court has thus, laid down that the Assessing Officer while issuing notice has to come to conclusion that whether it is case of concealment of income or case of fu .....

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ilarly, for furnishing inaccurate particulars of income, the standard proforma without striking of relevant clauses, as per the Hon ble High Court would lead to inference as to non-application of mind. 16. Further, the Hon ble Karnataka High Court in CIT Vs. SSA S Emerald Meadows (supra) has dismissed the appeal of Revenue, where the Tribunal had allowed the appeal of assessee holding that the notice issued by the Assessing Officer under section 274 r.w.s. 271(1)(c) of the Act to be bad in law a .....

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applied the ratio laid down by the Hon ble Karnataka High Court (supra) and held that where there is no striking off of either of limbs, then notice issued under section 274 r.w.s. 271(1)(c) of the Act was invalid and subsequent penalty proceedings were held to be vitiated. 18. The Mumbai Bench of Tribunal in Sanghavi Savla Commodity Brokers P. Ltd. Vs. ACIT in ITA No.1746/Mum/2011, relating to assessment year 2007 -08, order dated 22.12.2015 while deciding similar issue, wherein the Assessing O .....

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. ACIT in ITA Nos.616 to 618/Kol/2013, relating to assessment years 2007-08 to 2009-10, order dated 03.02.2016 and it has been further held that the provisions of section 292B of the Act cannot cure the basic defect in assumption of jurisdiction and could only cure the mistake, defect or omission in the return of income, assessment, notice or the proceedings. The Tribunal further held that show cause notice and the reasons mentioned in the show cause notice were part of process of natural justic .....

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ssessment year 1967-68 as the same was imposed without affording reasonable opportunity of hearing to the assessee. In respect of other two years where there was nonstriking of inaccurate portion, the Hon ble High Court held that the same would not invalidate the notice issued under section 274 of the Act. It was further held that the assessment orders were also made and reasons for issuing notice under section 274 r.w.s. 271(1)(c) of the Act were recorded by the Assessing Officer and since the .....

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in the language used or mere non-striking of inappropriate portion could not itself be invalidated the notice. It was held that the entire factual background would fall for consideration in the matter and no one aspect would be decisive. 21. In respect of assessment year 1967-68, the Hon ble High Court in CIT Vs. Smt. Kaushalya (supra) acknowledged that there could exist a case where vagueness and ambiguity in the notice could demonstrate non-application of mind by the authority and / or ultimat .....

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f Assessing Officer. The vagueness and ambiguity in the notice had also prejudiced the right of reasonable opportunity to the assessee since he did not know of exact charges he had to face. In this background, quashing of penalty proceedings for assessment year 1967-68 was held to be justified. Applying the said principle laid down by the Jurisdictional High Court, application of mind before issuing the notice under section 274 of the Act has to be considered. The Hon ble High Court clearly held .....

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in the hands of whole group for various years. Consequent to the notices issued under section 153A of the Act for various years, different entities filed the return of income for the respective years and cumulatively for ₹ 13.99 crores as additional income. The income was declared on account of on-money on sale of plots, which was detected from the documents seized during the course of search. Admittedly, Explanation 5A to section 271(1)(c) of the Act is attracted in such cases. However, t .....

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The perusal of assessment order passed in the present case reflects that the Assessing Officer while initiating proceedings has recorded satisfaction as to the assessee has furnished inaccurate particulars of income and has also concealed the income. The only source of addition in the hands of assessee is additional income offered by the assessee pursuant to search operations. In such circumstances, it is categorically a case of concealment. However, the Assessing Officer refers to both the lim .....

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way of additional ground of appeal is root of start of the proceedings i.e. recording of satisfaction and the issue of notice, which has been challenged by the assessee to be invalid. Applying the ratio laid down by the Hon ble Karnataka High Court in CIT & Anr. Vs. Manjunath Cotton and Ginning Factory (supra) and CIT Vs. SSA S Emerald Meadows (supra) and in view of SLP being dismissed, we find merit in the plea of assessee that the satisfaction recorded in the present case to initiate penal .....

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ncealment since the assessee had offered additional income pursuant to search carried out at its premises. It is not the case of furnishing of inaccurate particulars of income and hence, the Assessing Officer should have recorded the satisfaction accordingly and issued the notice accordingly. 24. We find no merit on the partial reliance placed upon by the learned Departmental Representative for the Revenue on the decision of Jurisdictional High Court in CIT Vs. Smt. Kaushalya (supra). The Hon bl .....

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t of income and furnishing of inaccurate particulars of income. The Hon ble Bombay High Court had also upheld the quashing of penalty proceedings for assessment year 1967-68 to be justified on account of vagueness and ambiguity in the notice issued. But the Hon ble High Court further held that where the assessee was fully aware of exact charge of the Department against him, then technical non-striking of certain terms in the notice would not invalidate the proceedings. Where there is default in .....

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he ingredients for imposing penalty remain the same. The purpose of the Legislature that it is meant to be a deterrent to tax evasion is evidenced by the increase in the quantum of penalty, from 20 per cent under the 1922 Act to 300 per cent in 1985. 24. Concealment of income and furnishing of inaccurate particulars carry different connotations. Concealment refers to a deliberate act on the part of the assessee. A mere omission or negligence would not constitute a deliberate act of suppression v .....

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inst the assessee that it is liable for levy of penalty for concealment under which limb i.e. for concealment of income or for furnishing of inaccurate particulars of income. The notice issued under section 274 of the Act by the Assessing Officer also does not show cause the assessee as to make him aware of exact charge levied against him. In the absence of same, it causes prejudice to the right of reasonable opportunity to be allowed to the assessee before levy of penalty under section 271(1)(c .....

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ted the same and had initiated penalty proceedings under section 271(1)(c) of the Act. The CIT(A) during the course of appellate proceedings relating to section 271(1)(c) of the Act issued enhancement notice to the assessee. Thereafter, he had gone through the seized documents and elaborately referred to them and even reproduced the scanned copies of such documents and comes to conclusion that loans were received from Ratanlal Bafna, but still upholds the penalty levied under section 271(1)(c) o .....

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