2020 (9) TMI 1015 - AT - Income Tax

Tribunal cancels penalty due to defective notice, emphasizing clear charges for taxpayers

Varun Finance Pvt. Ltd. Versus Income-tax Officer, Wd-5 (4), Kolkata

The Tribunal held that the ex parte order by the CIT(A) was unjustified as it dismissed the appeal without considering the grounds raised by the assessee. ... Penalty levied u/s. 271(1) ( c) r.w.s. 274 - non-validity of penalty notice - Defective notice - HELD THAT:- Reading of the penalty notice, we note that the AO has not stricken out the irrelevant portion of the fault/charge which would have spelt out the specific fault/charge against the assessee as per section 271(1) (c) of the Act. Since the proposed notice itself is defective, all subsequent proceedings are bad in law and the penalty imposed by the AO u/s. 271(1)(c) of the Act and confirmed by the Ld. CIT(A) should be cancelled. SEE M/S SSA’S EMERALD MEADOWS [2015 (11) TMI 1620 - KARNATAKA HIGH COURT] AND M/S MANJUNATHA COTTON AND GINNING FACTORY & OTHS., M/S. V.S. LAD & SONS, [2013 (7) TMI 620 - KARNATAKA HIGH COURT] - Decided in favour of assessee. Issues Involved:1. Validity of ex parte order by CIT(A).2. Validity of penalty notice under Section 271(1)(c) read with Section 274 of the Income-tax Act, 1961.3. Jurisdictional and procedural defects in the penalty notice.Detailed Analysis:1. Validity of ex parte order by CIT(A):The assessee contended that the CIT(A) dismissed the appeal without adjudicating the grounds of appeal and without considering the written submissions and judgments submitted through e-proceedings. The CIT(A) had indicated that personal appearance was not necessary, and submissions could be made via email. Despite this, the CIT(A) dismissed the appeal ex parte, blaming the assessee for non-compliance. The Tribunal noted that the CIT(A)'s action of dismissing the appeal ex parte without addressing the merits of the grounds raised by the assessee was unjustified.2. Validity of penalty notice under Section 271(1)(c) read with Section 274 of the Income-tax Act, 1961:The Tribunal examined the penalty notice issued by the AO, which proposed the levy of penalty for both 'concealment of particulars of income' and 'furnishing of inaccurate particulars of income' without specifying the exact charge. The Tribunal found the notice defective and invalid as it did not strike out the irrelevant portion to specify the charge against the assessee, making the subsequent penalty proceedings bad in law. The Tribunal relied on the decision of the Hon'ble Karnataka High Court in CIT vs. SSA Emerald Meadows, where a similar defect in the penalty notice was held to invalidate the penalty proceedings. The Supreme Court had dismissed the SLP filed by the Revenue against this decision.3. Jurisdictional and procedural defects in the penalty notice:The Tribunal emphasized that the penalty notice must clearly specify the charge against the assessee to be valid. The failure to strike out the irrelevant portion in the notice indicated a lack of application of mind by the AO. The Tribunal referred to several judicial precedents, including the decisions of the Hon'ble Karnataka High Court in CIT vs. Manjunatha Cotton and Ginning Factory and the Hon'ble Bombay High Court in CIT vs. Shri Samson Perinchery, which supported the view that a defective notice invalidates the penalty proceedings. The Tribunal also noted the consistent view of the ITAT in similar cases, reinforcing the requirement for a clear and specific charge in the penalty notice.Conclusion:The Tribunal concluded that the penalty notice issued under Section 271(1)(c) read with Section 274 was defective and invalid due to the failure to specify the exact charge against the assessee. Consequently, the penalty imposed by the AO and confirmed by the CIT(A) was unsustainable and was directed to be canceled. The appeal of the assessee was allowed in full.