2018 (3) TMI 1404 - AT - Income Tax

Appeal allowed, penalty deleted under Income-tax Act due to defective notice

Sukdeb Mondal Versus Income-tax Officer, Wd-15 (4), Kolkata

Sukdeb Mondal Versus Income-tax Officer, Wd-15 (4), Kolkata - TMI Issues Involved:1. Validity of penalty imposed under Section 271(1)(c) of the Income-tax Act, 1961.2. Adequacy of the show cause notice issued under Section 274 read with Section 271 of the Act.Detailed Analysis:1. Validity of Penalty Imposed under Section 271(1)(c) of the Income-tax Act, 1961:The appeal concerns the upholding of a penalty of Rs. 72,704/- imposed by the Assessing Officer (AO) under Section 271(1)(c) of the Income-tax Act, 1961. The penalty was imposed following the AO's discovery that the assessee had undisclosed income from other sources amounting to Rs. 2,32,436/- and had failed to produce evidence for advances taken from friends and relatives totaling Rs. 1,20,000/-. The AO added these amounts as undisclosed income and initiated penalty proceedings under Section 271(1)(c) for concealment of income and furnishing inaccurate particulars of income. The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the AO's decision, leading the assessee to appeal to the ITAT.2. Adequacy of the Show Cause Notice Issued under Section 274 Read with Section 271 of the Act:The crux of the assessee's argument was that the show cause notice issued under Section 274 read with Section 271 of the Act did not specify whether the penalty was for concealment of income or for furnishing inaccurate particulars of income. The notice used a standard format and failed to strike out the irrelevant portion, thus not clearly stating the charge against the assessee. This ambiguity was argued to be a violation of the principles laid down by the Hon'ble Karnataka High Court in CIT vs. SSA’s Emerald Meadows and CIT vs. Manjunatha Cotton and Ginning Factory, which held that such a defect renders the penalty proceedings invalid. The Supreme Court had dismissed the Special Leave Petition (SLP) against the Karnataka High Court's decision, reinforcing this legal position.The ITAT noted that the learned Departmental Representative (DR) cited various case laws to counter the assessee's argument. However, the ITAT referred to the decision of its coordinate bench in Jeetmal Choraria vs. ACIT, which dealt with similar issues. The ITAT emphasized that the Hon'ble Bombay High Court in CIT vs. Kaushalya and the Hon'ble Patna High Court in CIT vs. Mithila Motors (P.) Ltd. had held that a mere mistake in the language of the notice or non-striking of the inaccurate portion does not invalidate the notice, provided the assessee is aware of the charges and given an opportunity to be heard.However, the ITAT preferred to follow the view of the Hon'ble Karnataka High Court, which mandates that the specific charge must be clearly stated in the show cause notice. The ITAT observed that in the present case, the show cause notice did not specify the charge, making the imposition of penalty unsustainable.Conclusion:Respecting the precedents set by the Hon'ble Karnataka High Court and the coordinate bench of the ITAT, the Tribunal concluded that the penalty imposed under Section 271(1)(c) and confirmed by the CIT(A) could not be sustained due to the defective show cause notice. Consequently, the penalty was deleted, and the appeal of the assessee was allowed.Result:The appeal of the assessee was allowed, and the penalty imposed under Section 271(1)(c) was deleted. The order was pronounced in the open court on 21st March 2018.