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TMI Blog2017 (8) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... . Solitary grievance of the assessee in all these appeals is against penalty under section 271(1)(c) of the Act imposed for the assessment years 2001- 02 to 2004-05 at Rs. 57,691, Rs. 40,357, Rs. 88,951 and Rs. 36,234. All these penalties for the four years were imposed on the additions confirmed under section 68 of the Act for the assessment years 2001-02 to 2004-05 at Rs. 1,45,000, Rs. 1,12,264, Rs. 1,29,000 and Rs. 1,01,000, respectively. In the appeal before the first appellate authority, the assessee could not succeed as in all the four years the impugned penalty was confirmed by the learned Commissioner of Income-tax (Appeals) by observing that "as the appellant failed to produce any evidence regarding the impugned additions, it cannot be considered as bona fide omission or mistake on the part of the appellant". 3. Aggrieved, the assessee is now in appeal before the Tribunal. 4. The learned counsel for the assessee raised two fold contentions ; firstly, on the merits and secondly, on the legal aspect challenging the notices issued under section 274 of the Act. 5. First, we will take up the second issue of legality of notice under section 274 of the Act. The learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l representative is concerned, challenging the admission of this legal ground before the Tribunal, we are of the view that it is a well settled principle of law that legal ground can be raised at any stage by the appellant. We, therefore, proceed to adjudicate the common ground raised by the assessee challenging the legality of notice under section 274 read with section 271 of the Act. We find that penalty under section 271(1)(c) of the Act has been imposed at Rs. 57,691, Rs. 40,357, Rs. 88,951 and Rs. 36,234 for the assessment years 2001- 02 to 2004-05 respectively on the additions confirmed under section 68 of the Act. The assessee has challenged that the learned Assessing Officer was not clear at the time of issuing notice under section 274 read with section 271 of the Act that whether the assessee has furnished inaccurate particulars of income or concealed the particulars of income. 8. Before moving further, we find it pertinent to go through the decision of co-ordinate Bench, Mumbai in the case of Samson Perinchery v. Asst. CIT (I. T. A. Nos. 4625 to 4630/Mumbai/2013, dated October 11, 2013), which has adjudicated a similar issue in the light of the judgment of the hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which reads as under : '4. From the above, I am satisfied that the assessee has concealed the particulars of income so as to evade tax and as such penalty under section 271(1)(c) of the Act is leviable. The tax on the undisclosed income of Rs. 31,00,790 (including foreign travel) works out to Rs. 9,30,200. Accordingly, I hereby levy a minimum penalty at 100 per cent. of tax i.e., Rs. 9,30,200.' 11.1. Further, we have also perused the notice issued under section 274 of the Act and the relevant paragraph reads as under : 'have concealed the particulars of your income or . . . Furnished inaccurate particulars of such income' Knowingly or otherwise, the Assessing Officer has not bothered to fill the blanks with appropriate limb of the provisions of section 271(1)(c) of the Act. 12. The above extracts reveal that the Assessing Officer has not applied his mind to the fact for which reason of the penalty, the notices were issued. The above documents reveal that the penalty proceedings were initiated for 'failure to furnish inaccurate particulars of income and however, the penalty was levied for concealment of income'. 12.1. In this regard, we have peru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be for both the offences. But drawing up penalty proceedings for one offence and finding the assessee guilty of another offence or finding him guilty for 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 imposed, it should be imposed only on the grounds on which he is called upon to answer. It is not open to the authority, at the time of imposing penalty to impose penalty on the grounds other than what assessee was called upon to meet. Otherwise though the initiation of penalty proceedings may be valid and legal, the final order imposing penalty would offend principles of natural justice and cannot be sustained. Thus once the proceedings are initiated on one ground, the penalty should also be imposed on the same ground. Where the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove decision of the co-ordinate Bench, Mumbai has been confirmed by the hon'ble Bombay High Court, See CIT v. Samson Perinchery [2017] 392 ITR 4 (Bom). 9. Similar issue also came up before the hon'ble High Court of Karnataka in the case of CIT v. SSA's Emerald Meadows (I. T. A. No 380 of 2015), which also confirmed the Tribunal's decision which followed the judgment of the hon'ble Karnataka High Court in the case of CIT v. Manjunatha Cotton and Ginning Factory [2013] 359 ITR 565 (Karn). This judgment of the hon'ble High Court of Karnataka attained finality as the Revenue's special leave petition was dismissed by the hon'ble apex court vide order dated August 5, 2016. 10. After going through the above matrix of law discussed by a co-ordinate Bench and the hon'ble High Court, we move ahead to examine the facts of the case before us. We find that in all the four assessment years, in the show-cause notice under section 274 read with section 271, all even dated December 31, 2008, the learned Assessing Officer has merely ticked the reasons which reads "have concealed the particulars of your income or furnished inaccurate particulars of such income". ..... X X X X Extracts X X X X X X X X Extracts X X X X
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