2018 (7) TMI 47 - AT - Income Tax

Penalty under Income-tax Act canceled due to defective notice

Jayanta Dasgupta Versus Income-tax Officer, Wd-23 (3), Hooghly

The Tribunal held that the penalty imposed under Section 271(1)(c) of the Income-tax Act, 1961 could not be sustained due to a defective show cause notice ... Penalty u/s. 271(1)(c) - non specification of charge against the assessee - Held that:- Show cause notice issued in the present case u/s 274 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 does not strike out the inappropriate words. We are of the view that imposition of penalty cannot be sustained. The plea of the assessee which is based on the decisions referred to in the earlier part of this order has to be accepted. We therefore hold that imposition of penalty in the present case cannot be sustained and the same is directed to be cancelled. See JEETMAL CHORARIA VERSUS A.C.I.T., CIRCLE-43, [2017 (12) TMI 883 - ITAT, KOLKATA]. - Decided in favour of assessee. Issues Involved:1. Validity of the penalty imposed under Section 271(1)(c) of the Income-tax Act, 1961.2. Specificity of the charge in the show cause notice under Section 274 read with Section 271(1)(c).Detailed Analysis:1. Validity of the Penalty Imposed under Section 271(1)(c):The central issue in this appeal is the validity of the penalty of Rs. 6,05,524/- imposed by the Assessing Officer (AO) under Section 271(1)(c) of the Income-tax Act, 1961. The AO had found that the assessee did not disclose salary income amounting to Rs. 22,74,500/-, which led to the addition of this amount to the total income of the assessee. Consequently, the AO initiated penalty proceedings for concealment of income by issuing a notice under Section 274 read with Section 271(1)(c). The AO was dissatisfied with the assessee's explanation and levied the penalty, which was subsequently confirmed by the Commissioner of Income Tax (Appeals) [CIT(A)].2. Specificity of the Charge in the Show Cause Notice:A significant point raised by the assessee's counsel was that the show cause notice issued under Section 274 read with Section 271(1)(c) did not specify the exact charge against the assessee. The notice failed to strike out the irrelevant portion, leaving it ambiguous whether the penalty was for 'concealment of particulars of income' or 'furnishing inaccurate particulars of income.' This ambiguity was highlighted as a critical flaw, rendering the penalty proceedings invalid.The counsel for the assessee referenced several judicial precedents to support this argument. Notably, the Karnataka High Court in CIT vs. SSA’s Emerald Meadows and CIT vs. Manjunatha Cotton and Ginning Factory held that a penalty notice must clearly specify the charge. The Supreme Court upheld this view by dismissing the Special Leave Petition (SLP) filed by the revenue against the Karnataka High Court’s decision.The Bombay High Court in CIT vs. Shri Samson Perinchery also supported this view, emphasizing that a defective show cause notice without a specific charge cannot sustain the imposition of penalty. The ITAT in Suvaprasanna Bhattacharya vs. ACIT followed a similar rationale.Counterarguments by the Department:The Department's Representative (DR) presented various case laws to counter the assessee's arguments. However, these were distinguished by the Tribunal. For instance, the Calcutta High Court's decision in Dr. Syamal Baran Mondal vs. CIT was deemed not relevant as it dealt with the recording of satisfaction rather than the specificity of the charge in the show cause notice.The DR also cited decisions from the Mumbai ITAT and the Bombay High Court, such as CIT vs. Kaushalya, which suggested that a mere mistake in the notice language does not invalidate the penalty proceedings. However, the Tribunal noted that these decisions did not align with the principle that the notice must clearly inform the assessee of the specific charge.Tribunal's Conclusion:The Tribunal, after considering the arguments and judicial precedents, concluded that the show cause notice in the present case was indeed defective as it did not specify the charge against the assessee. Following the principle that where two views exist, the one favorable to the assessee should be adopted, the Tribunal preferred the view expressed by the Karnataka High Court in Manjunatha Cotton and Ginning Factory.Thus, the Tribunal held that the imposition of penalty could not be sustained due to the defective notice and directed the cancellation of the penalty. Consequently, the appeal of the assessee was allowed.Order Pronouncement:The order was pronounced in the open court on 29.06.2018, allowing the appeal of the assessee and canceling the penalty imposed under Section 271(1)(c) of the Income-tax Act, 1961.