2014 (11) TMI 1005 - AT - Income Tax

Tribunal upholds CIT(A)'s decision, penalty dismissed under Income-tax Act.

Deputy Commissioner of Income-tax, Circle 11 (4), Bangalore. Versus M/s. Ittina Properties Pvt. Ltd.,

The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decision to set aside the penalty under section 271(1)(c) of the Income-tax Act, 1961. ... Penalty u/s 271(1)(c) - disallowance of business loss - whether losses arising from such 80-IB projects should be adjusted against profits of 80-IB projects of earlier years? - Held that:- Concealment, furnishing inaccurate particulars of income are different. Thus the Assessing Officer while issuing notice has to come to the conclusion that whether is it a case of concealment of income or is it a case of furnishing of inaccurate particulars. The Apex Court in the case of Ashok Pai reported in [2007 (5) TMI 199 - SUPREME Court] held that concealment of income and furnishing inaccurate particulars of income carry different connotations. The Gujarat High Court in the case of MANU ENGINEERING reported in [1978 (9) TMI 18 - GUJARAT High Court] and the Delhi High Court in the case of VIRGO MARKETING [2008 (1) TMI 885 - DELHI HIGH COURT] has held that levy of penalty has to be clear as to the limb for which it is levied and the position being unclear penalty is not sustainable. Therefore, when the Assessing Officer proposes to invoke the first limb being concealment, then the notice has to be appropriately marked. Similar is the case for furnishing inaccurate particulars of income. The standard proforma without striking of the relevant clauses will lead to an inference as to non-application of mind. - Decided in favour of assessee. Issues:Appeal against penalty under section 271(1)(c) of the Income-tax Act, 1961.Analysis:1. Issue of Penalty under Section 271(1)(c):The appeal was filed by the Revenue against the order of the CIT(A) setting aside the penalty levied by the Assessing Officer (AO) under section 271(1)(c) of the Income-tax Act, 1961. The AO disallowed the business loss claimed by the assessee due to a change in the method of accounting, resulting in a total loss. The AO initiated penalty proceedings and levied a penalty at 100% of the tax sought to be evaded. The CIT(A) deleted the penalty, leading to the Revenue's appeal. During the hearing, it was noted that the notice for penalty was issued without specifying the default for which the proceedings were initiated, rendering the notice invalid. Citing a previous judgment, it was emphasized that penalty proceedings must be based on specific grounds, and the assessee should have the opportunity to contest the penalty. The Tribunal found the notice and consequent penalty order invalid, as there was no finding of concealment of income or furnishing inaccurate particulars.2. Validity of Penalty Order:The Tribunal referred to a judgment stating that penalty proceedings should be initiated and imposed based on the same ground. It was highlighted that the Assessing Officer must determine whether there is concealment of income or furnishing inaccurate particulars before issuing a notice under section 271(1)(c). The Tribunal observed that the penalty order must be clear as to the grounds on which it is levied, either concealment or inaccurate particulars. In this case, the Tribunal found the notice invalid due to non-specification of grounds and lack of finding on concealment or inaccurate particulars. The Tribunal, in line with the decision of the jurisdictional High Court, held the notice and penalty order invalid.3. Conclusion:The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decision to set aside the penalty under section 271(1)(c). The Tribunal found the notice for penalty invalid as it did not specify the grounds for penalty imposition, and there was no finding of concealment or inaccurate particulars. The Tribunal emphasized the importance of following due process and providing the assessee with a clear opportunity to contest penalty proceedings based on specific grounds. The judgment highlighted the necessity of strict compliance with legal requirements to ensure the validity of penalty orders.