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TMI Blog2023 (5) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. The penalty so imposed by the AO and confirmed by the ld. CIT(A), being totally contrary to the provisions of law and facts kindly be deleted in full. 3. That the show cause notice (SCN) issued u/s 274 and the consequent impugned penalty order dated 21.01.2020, is quite vague and does not specify which limb of Section 271(1)(c) of the Act, the penalty proceedings had been initiated and/or imposed i.e., whether for concealment particulars of income or furnishing of inaccurate particulars of income. The impugned penalty order being contrary to the judicial principle laid down kindly be quashed. 4. The appellant prays your honour indulgences to add, amend or alter of or any of the grounds of the appeal on or before the date of hearing." 3. Succinctly, the fact as culled out from the records is that the assessee is an elderly widow woman. In this case a notice u/s 148 issued on 30.03.2019. In response to which the assessee filed ROI on 29.04.2019 declaring total income at Rs. 12,95,940/-, which was accepted and assessed by the AO vide order dated 24.07.2019 u/s 147/143(3) of the Act. 3.1 While completing the assessments u/s 147/143(3) and with respect to the income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O. After due consideration of the facts of the case, the AO levied penalty u/s 271(1)(c) of Rs. 2,40,795/- in respect of concealment of income of Rs. 12,95.940/- @ 100% of tax sought to be evaded. 6.2 In course of the appellate proceedings, the appellant submitted that her return filed in response to notice u/s 148 was accepted without making any further additions and therefore it cannot be said that she had concealed her income. Further the appellant contended that the tax on the income disclosed in the return filed in response to notice u/s 148 was duly paid even before issue of the said notice u/s 148 and therefore penalty is not leviable as per the decision of Hon'ble ITAT Mumbai in the case of M/s Balaji Telefilms Ltd (supra). The appellant further contended that the AO in the notice issued u/s 148 had not specifically mentioned as to whether the default is for furnishing of inaccurate particulars of income of for concealment of particulars of income and therefore as per the decision in the case of Samson Perinchery (supra), the penalty notice itself is invalid. 6.3 The contentions of the appellant have been duly considered. The assessee contends that the AO has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the notice. The entire factual background would fall for consideration in the matter and no one aspect would be decisive. In this context, useful reference may be made to the following observation in the case of CIT vs. Mithila Motor's (P) Ltd. (1984) 149 ITR 751 (Patna)" (emphasis supplied) 6.4 On careful examination of the aforesaid decision of the Hon'ble Bombay High Court and also the other relevant decisions of the other Hon'ble Courts especially Hon'ble Karnataka High Court, on this issue, it is observed that in certain cases nonstriking of the redundant words will vitiate the penalty proceedings, however, if the specific charge is duly mentioned in the assessment order while initiating the penalty, then mere non-striking of the redundant portion in the notice u/s 274 would not vitiate the penalty proceedings. The principles which emerge from the various decisions of the Hon'ble High Courts are that non-striking of the redundant portion of the notice will not vitiate the penalty proceedings if (). the AO has duly applied his mind at the time of initiation of penalty proceedings in the assessment order by specifically giving a finding on whether the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Ground of appeal No. 1 raised by the appellant is dismissed." 5. As the assessee did not find any favour from the appeal so filed before the ld. CIT(A), assessee moved this appeal before this tribunal. To support the various grounds so raised the ld. AR appearing on behalf of the assessee argued in detailed based on the written submission so made by him. The written submission so filed is reiterated here in below; "Facts: The assessee is an elderly windowed individual woman. In this case a notice u/s 148 issued on 30.03.2019. In response to which the assessee filed ROI on 29.04.2019 declaring total income at Rs. 12,95,940/-, which was accepted and assessed by the AO vide order dated 24.07.2019 u/s 147/143(3) of the Act. While completing the assessments u/s 147/143(3) and with respect to the income so offered in the ROI and accepted by the AO, the AO initiated the penalty proceedings u/s 271(1)(c) and show cause notice u/s 274 dated 21.01.2020 was issued in response to which the assessee filed detailed reply on dated 12.09.2019 reproduced at Pg. 2 & 3 of the penalty order. The AO however felt dissatisfied and held that the assessee has concealed his particulars of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had remained below taxable limit. It is only in the relevant assessment year, the assessee's income was above taxable limit that too due to interest earned from FDR. Such information was already available with the department and in manner be termed as concealment of income on the part of the assessee. 2.3 No difference between the returned and assessed income: There is no dispute on the fact between the parties that the ld. AO assessed the same very income which was declared by assessee vide his ROI dated 06.07.2015 at Rs.9,36,710/- (PB 6-10) during the course of assessment proceedings. The same was assessed by the assessing officer as it is without any variation. It is submitted that in the cases of penalty of concealment/furnishing inaccurate particular, the very starting point is the (last) return of income filed by the assessee which has been acted upon by the AO and it is only the difference between the income so returned and the income finally assessed by the AO, which invites imposition of penalty. In a case where however, there is no such difference, there cannot be any question of imposition of penalty. 2.4 A useful reference on this aspect can be made to the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no material available on record by which there could be an inference drawn by the authority that it was a deliberate concealment on the part of the assessee and it could not be considered that there was an inaccurate particulars of income that was made the basis for inflicting penalty upon the assessee in exercise of powers conferred u/S.271(1)(c) of the Act. 7. We do not find any substance in the submissions made by counsel for appellant and apart from that even if there appears some substance, this court has a limited scope in the instant appeal u/S.260A of the Act, to examine if a substantial question of law arises for consideration. 8. Taking note of the submissions and the order passed by the CIT (Appeals) and the Income Tax Appellate Tribunal, in our considered view, no substantial question of law arises in the instant appeal which may require consideration. 9. Consequently, the appeal is wholly devoid of merits and accordingly dismissed." 4.2 On this aspect kindly refer ITO vs Tolaram 38 taxworld 121 (JP) (DPB?) holding that: "Section 271(1)(c) of IT Act - In this case return was filed on 29.8.1996 - Later on a survey was conducted u/s 133A on 6.2.1997 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incidentally gives him an opportunity to make good omission, if any, in the original return. Once the A.O. accepts the revised return filed under Section 153A, the original return under Section 139 abates and becomes non-est. Now, it is trite to say that the "concealment" has to be seen with reference to the return that it is filed by the assessee. Thus, for the purpose of levying penalty under Section 271(1)(c), what has to be seen is whether there is any concealment in the return filed by the assessee under Section 153A, and not vis-a vis the original return under Section 139"... Finally, the Hon`ble Court confirmed the deletion of penalty. 5.2 Prem Arora vs. DCIT (2012) 78 DTR 91 (Delhi) (Tribunal) (DPB?) wherein, it was held as under: "Section 271(1)(c), read with section 153A, of the Income-tax Act, 1961 - Penalty - For concealment of income - Assessment year 2004-05 - Whether for purpose of imposition of penalty under section 271(1)(c) resulting as a result of search assessments made under section 153A, original return of income filed under section 139 cannot be considered - Held, yes - Whether concealment of income has to be seen with reference to additional income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of same with Government, Tribunal opined that it was an inadvertent error on part of accountant - Tribunal, thus, set aside impugned penalty order - High Court by impugned order held that, on facts, no substantial question of law arose from Tribunal's order and, thus, same deserved to be upheld - Whether Special leave petition filed against impugned order was to be dismissed - Held, yes [Paras 3 and 4] [In favour of assessee]." 6. The ld DR is heard who has relied on the findings of the lower authorities and vehemently argued that the assessee has not filed the return of income even though she is supposed to do so and has paid the tax and filed return of income only on the issue of notice by the revenue. 7. We have heard the rival contentions and perused the material placed on record. It is not in dispute that in the present case, notice u/s 133(6) was issued on 08.03.2019 immediately thereafter the assessee voluntarily deposited the tax along with the computation of income in response to the said notice vide letter dated 25.03.2019. It only after this the AO issued notice u/s 148 (i.e. on 30.03.2019). The assessee on his own after receiving notice u/s 148 voluntarily decl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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