Income Tax Appellate Tribunal - Pune
Sohail Isaq Bhagwan, Baramati vs Deputy Commissioner Of Income-Tax, ... on 19 August, 2019
आयकर अपीऱीय अधिकरण पण
ु े न्यायपीठ "बी" पण
ु े में
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "B", PUNE
सुश्री सुषमा चावऱा, न्याययक सदस्य एवं श्री अयिऱ चतुवेदी, ऱेखा सदस्य के समक्ष
BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM
आयकर अपीऱ सं. / ITA No.24/PUN/2019
यििाारण वषा / Assessment Year : 2011-12
Sohail Isaq Bagwan,
Bagwan Galli,
Kacheri Road,
Baramati .... अऩीऱाथी/Appellant
PAN: ADQPB9359L
Vs.
The Dy. Commissioner of Income Tax,
Circle - 5, Pune .... प्रत्यथी / Respondent
अऩीऱाथी की ओर से / Appellant by : Shri M.K. Kulkarni
प्रत्यथी की ओर से / Respondent by : Shri Pankaj Garg
सन
ु वाई की तारीख / घोषणा की तारीख /
Date of Hearing : 23.07.2019 Date of Pronouncement: 19.08.2019
आदे श / ORDER
PER SUSHMA CHOWLA, JM:
The appeal filed by assessee is against order of CIT(A)-7, Pune, dated 26.11.2018 relating to assessment year 2011-12 against penalty levied under section 271(1)(c) of the Income-tax Act, 1961 (in short 'the Act').
2. The assessee has raised the following grounds of appeal:-
1) On the facts and in the circumstances of the case and in law the Ld. CIT(A) was not justified in confirming the penalty under section 271(1)(c) of Rs.
4,84,791/- levied by A.O. was not so leviable without pointing out any "concealment" or "furnishing inaccurate particulars" of Income. The penalty levied under section 271(1)(c) is not sustainable. It be quashed. ITA No.24/PUN/2019
2 Shri Sohail Isaq Bagwan
2) On the facts and in the circumstances of the case and in law there was no satisfaction recorded by the AO under which limb of the section, whether "concealment" or "Furnishing of inaccurate particulars" of income is available. In the absence of such satisfaction the penalty levied by AO and confirmed by LD. CIT(A) is not sustainable. It be quashed.
3) On the facts and in the circumstances of the case and in law and considering the Hon'ble Bombay High Court and other judicial precedents the penalty levied under section 271(1)(c) by AO and confirmed by Ld. CIT(A) though this legal position was pointed out before Ld. CIT(A), the Ld. CIT(A) ignored all this legal position and confirmed the penalty. It be deleted.
3. The only issue raised in the present appeal is against levy of penalty under section 271(1)(c) of the Act.
4. Briefly, in the facts of the case, the assessee had filed return of income declaring total income of ₹ 45,14,260/-. The case of assessee was picked up for scrutiny under CASS and addition of ₹ 26,07,760/- on account of short term capital gains was made in the hands of assessee. The Assessing Officer while finalizing the assessment has held that the assessee has concealed the particulars of income. While levying penalty for concealment, the Assessing Officer had held the assessee to have concealed its income by furnishing inaccurate particulars of income. Thereafter, the Assessing Officer had levied penalty under section 271(1)(c) of the Act at ₹ 4,64,791/-, which was confirmed by CIT(A) and the assessee is in appeal against the same.
5. We have heard the rival contentions and perused the record. The issue which arises in the present appeal is against levy of penalty for concealment under section 271(1)(c) of the Act. The Assessing Officer while completing assessment had made addition of ₹ 26,07,760/- on account of short term capital gains was made in the hands of assessee. Thereafter, while levying penalty, the Assessing Officer held as under:-
"08. Keeping in view of the facts and circumstances of the case, I am satisfied that assessee without sufficient and reasonable cause under the deliberate intention concealed its income by furnishing inaccurate particulars of income to the extent of Rs.26,07,760/-. Therefore, I consider this to be a fit ITA No.24/PUN/2019 3 Shri Sohail Isaq Bagwan case for imposing penalty U/s 271(1)(c) of the I.T. Act, 1961. Accordingly a penalty of Rs.4,64,791/- hereby imposed U/s 271(1)(c) of the I.T. Act, 1961...."
6. The Assessing Officer thus, while recording satisfaction for initiating penalty proceedings had held the assessee to have concealed the particulars of income and while levying penalty had held the assessee to have concealed its income by furnishing inaccurate particulars of income. In other words, the Assessing Officer has failed to come to finding as to which limb of section 271(1)(c) of the Act has not been fulfilled by assessee. Hence, penalty order passed by the Assessing Officer suffers from infirmity i.e. in not coming to finding as to which limb of section 271(1)(c) of the Act is not satisfied.
7. We find support from the ratio laid down by the Hon'ble Bombay High Court in CIT Vs. Shri Samson Perinchery (2017) 392 ITR 4 (Bom), wherein it was held that where there is no proper satisfaction for initiating penalty proceedings and in the absence of proper show cause notice to the assessee, there is no merit in levy of penalty. In the present case, Assessing Officer has failed to conclude which limb of section 271(1)(c) of the Act is applicable, hence order suffers from infirmity. Accordingly, we delete the penalty levied under section 271(1)(c) of the Act. The grounds of appeal raised by assessee are thus, allowed.
8. In the result, the appeal of assessee is allowed.
Order pronounced on this 19th day of August, 2019.
Sd/- Sd/-
(ANIL CHATURVEDI) (SUSHMA CHOWLA)
ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER
ऩुणे / Pune; ददनाांक Dated : 19th August, 2019.
GCVSR
ITA No.24/PUN/2019
4 Shri Sohail Isaq Bagwan
आदे श की प्रयतलऱपप अग्रेपषत/Copy of the Order is forwarded to :
1. अऩीऱाथी / The Appellant;
2. प्रत्यथी / The Respondent;
3. आयकर आयक् ु त(अऩीऱ) / The CIT(A)-7, Pune;
4. The Pr.CIT-6, Pune;
5. ववबागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, ऩुणे "फी" / DR 'B', ITAT, Pune;
6. गार्ड पाईऱ / Guard file.
ु ार/ BY ORDER, आदे शािस सत्यावऩत प्रतत //True Copy// वररष्ठ तनजी सधिव / Sr. Private Secretary आयकर अऩीऱीय अधधकरण ,ऩुणे / ITAT, Pune