2018 (4) TMI 644 - AT - Income Tax

Defective Notice Leads to Penalty Deletion

Shyamal Gopal Chattopadhyay Versus Deputy Commissioner of Income-tax, (International Taxation) -2 (1), Kolkata

The Tribunal held that the imposition of penalty under Section 271(1)(c) could not be sustained due to the defective show cause notice under Section 274, ... Penalty u/s. 271(1)(c) - addition under the head salary income as concealed income - non specification of charge - AO has not struck out the irrelevant portion in the show cause notice - Held that:- The show cause notice issued in the present case u/s 274 of the Act does not specify the charge against the assessee as to whether it is for concealing particulars of income or furnishing inaccurate particulars of income. The show cause notice u/s 274 of the Act does not strike out the inappropriate words. In these circumstances, we are of the view that imposition of penalty cannot be sustained. - Decided in favour of assessee. Issues Involved:1. Imposition of penalty under Section 271(1)(c) of the Income-tax Act, 1961.2. Validity of the show cause notice issued under Section 274 of the Income-tax Act, 1961.Issue-wise Detailed Analysis:1. Imposition of Penalty under Section 271(1)(c) of the Income-tax Act, 1961:The primary issue in this appeal was the imposition of a penalty amounting to Rs. 10,78,306/- under Section 271(1)(c) of the Income-tax Act, 1961. The penalty was upheld by the Commissioner of Income Tax (Appeals) [CIT(A)] for the Assessment Year (AY) 2011-12. The penalty was imposed by the Assessing Officer (AO) following an assessment under Section 143(3), where the total income was determined at Rs. 40,81,020/- against the returned income of Nil. The AO added Rs. 33,47,112/- under the head 'salary income' and Rs. 7,33,910/- as Short Term Capital Gain (STCG), treating these as concealed income. The assessee contended that the STCG was a clerical mistake, but the AO initiated penalty proceedings and imposed the penalty.2. Validity of the Show Cause Notice Issued under Section 274 of the Income-tax Act, 1961:The second issue was the validity of the show cause notice under Section 274, which did not specify whether the penalty was for 'concealment of particulars of income' or 'furnishing inaccurate particulars of income.' The Tribunal noted that the AO had not struck out the irrelevant portion in the show cause notice, rendering it vague. The Tribunal cited several judgments, including the Hon’ble Karnataka High Court in the case of CIT vs. SSA’s Emerald Meadows and the Hon’ble Supreme Court’s dismissal of the Revenue’s SLP, to support the view that a defective show cause notice invalidates the penalty proceedings. The Tribunal also referenced the Hon’ble Bombay High Court’s decision in CIT vs. Shri Samson Perinchery, which upheld the same principle.The Tribunal further discussed various case laws presented by the Departmental Representative (DR), including decisions from the Hon’ble Calcutta High Court, Hon’ble Bombay High Court, and ITAT Mumbai. However, the Tribunal found that the principles laid down by the Hon’ble Karnataka High Court in CIT vs. Manjunatha Cotton and Ginning Factory, which emphasized the necessity of specifying the charge in the show cause notice, were more applicable. The Tribunal concluded that where two views exist, the one favorable to the assessee should be followed.Conclusion:The Tribunal held that the imposition of penalty under Section 271(1)(c) could not be sustained due to the defective show cause notice under Section 274, which failed to specify the exact charge against the assessee. Consequently, the penalty was deleted, and the appeal of the assessee was allowed. The order was pronounced in the open court on 11.04.2018.