Income Tax Appellate Tribunal - Pune
Uttam Bhagwanrao Patil,, Latur vs Deputy Commissioner Of Income-Tax, ... on 19 July, 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
Sr. ITA No. Name of appellant Name of the Respondent Assessment
No. Year
Mr. Uttam Bhagwanrao
Patil,
1718/PUN/2017 Udyog Bhavan Complex, The Dy. Commissioner of 2001-02
st
1-2 & 1 Floor, Shivajinagar, Income Tax, Central Circle &
1719/PUN/2017 Latur - 413512 2(1), Pune 2003-04
PAN: AEWPP0155P
Nawander Company, Latur 2011-12
M.No.7/807, Nawander The Asst. Commissioner of
3 1683/PUN/2017 Road, Near Old Navyug Income Tax, Latur Circle,
Talkies, Latur - 413512 Latur
PAN: AABFN1730N
M/s. Aurangabad
Electricals Ltd.,
The Dy. Commissioner of Plot No.B-7, MIDC,
1789/PUN/2017 Income Tax, Chakan,
4 2010-11
Circle - 8, Pune Village-Mahalunge,
Tal:Khed, Pune - 410501
PAN: AACCA2867L
M/s. Hotel Damini,
221/E Ward, Bhavani
1887/PUN/2017 Chambers, Tarabai Park, The Income Tax Officer,
5 2002-03
Kolhapur - 416003 Ward 2(1), Kudal
PAN: AAAFH8917R
Dr. M.S. Hiremath,
1126B, Model Colony
1894/PUN/2017 Road, Shivajinagar, The Dy. Commissioner of
6 2011-12
Pune - 411016 Income Tax, Circle 5, Pune
PAN: AADPH0605H
Shri Bhatabhai Shankar
Patel,
2/B, Umdavan Society,
The Income Tax Officer,
7 1913/PUN/2017 Ahinsa Chowk, 2005-06
Ward-4, Dhule
Nandurbar - 425412
PAN: ABHPP1455A
Jeetu Bhagchand Khemani
12, Behind Tupsakhare
2114/PUN/2017 Lawns, Tidke Colony, The Income Tax Officer,
8 2013-14
Nashik-422005 Ward 1(3), Nashik
PAN: AGLPK8732C
Swapnil Popatlal Shah,
"Parag", 286/2, Budhwar The Asst. Commissioner of
9 2152/PUN/2017 Peth, Karad - 415110 Income Tax, Satara Circle, 2013-14
Satara
PAN: AFFPS2173E
ITA Nos.1718 & 1719/PUN/2017 & Ors
2
Uttam Bhagwanrao Patil & Ors
Rakesh Lalchand Shah,
"Parag", 286/2, Budhwar The Asst. Commissioner of
10 2154/PUN/2017 Peth, Karad - 415110 Income Tax, Satara Circle, 2013-14
Satara
PAN: AFFPS2179Q
Lalchand Chhotalal Shah,
"Parag", 286/2, Budhwar The Asst. Commissioner of
11 2155/PUN/2017 Peth, Karad - 415110 Income Tax, Satara Circle, 2013-14
Satara
PAN: AFFPS2174D
Shri Rahul Nayan Bhalerao
45/46, Saptashringi
2234/PUN/2017 The Income Tax Officer, Swastishree Society, 2008-09
12-
To Ward 3(3), Pune Ganesh Nagar, To
15
2237/PUN/2017 Pune - 411052 2011-12
PAN: AARPB9087B
Thouwfeeq Fish Meal & Oil
Company Pvt. Ltd., The Asst. Commissioner of
16 2323/PUN/2017 B 27 and B 28, MIDC, Income Tax, Ratnagiri 2009-10
Mirjole, Ratnagiri. Circle, Ratnagiri.
PAN: AACCT1339A
Mr. Raju Ramchandra
Thakwani,
Office No.7, Nucleus Mall, The Income Tax Officer,
17 2353/PUN/2017 Bund Garden Road, Camp, 2001-02
Ward 4(5), Pune
Pune - 411001
PAN: AAJPT0518K
Vyankatesh Cooperative
Bank Ltd.,
The Dy. Commissioner of
2494/PUN/2017 Camp Road, Market Yard,
18 Income Tax, Circle 2013-14
Malegaon - 423105
Malegaon
PAN: AAAJS0296A
Shri Abhay Nayan Bhalerao
45/46, Saptashringi
2527/PUN/2017 The Income Tax Officer, Swastishree Society, 2008-09
19-
& Ward 3(3), Pune Ganesh Nagar, &
20
2528/PUN/2017 Pune - 411052 2010-11
PAN: AARPB9088Q
Shri Suryakant V.
Ambarwadikar,
Prop. Garden Court Bar &
Restaurant and Surya The Asst. Commissioner of
21 2704/PUN/2017 Lawns, Beed Bye Pass Income Tax, Circle - 3, 2013-14
Road, Satara Parisar, Aurangabad
Aurangabad - 431010
PAN: AELPA0578E
Mr. Shivaji Shankar Shinde,
2838/PUN/2017 503, E-Ward, Shahupuri, 2001-02
22- The Income Tax Officer,
To Station Road, Kolhapur To
26 Ward 2(2), Kolhapur
2842/PUN/2017 2005-06
PAN: AGMPS9505L
Smt. Geeta Jayyaa Shetty,
L/H of Late Jayya Nemu
Shetty,
2934/PUN/2017 D-502, Rohan Tapovan, The Income Tax Officer,
27 2011-12
Patrakar Nagar, Ward-3(1), Pune
Shivajinagar, Pune
PAN: ADHPS2155A
ITA Nos.1718 & 1719/PUN/2017 & Ors
3
Uttam Bhagwanrao Patil & Ors
M/s. Kohinoor Restaurant,
242, M.G. Road,
The Income Tax Officer,
28 141/PUN/2018 Pune-411001 2007-08
Ward 4(5), Pune
PAN: AABFK3076B
Sanjay Kanhaiyalal
Rajawat,
Sr No.6, House No.376,
The Income Tax Officer,
29 201/PUN/2018 Pashan NDA Road, 2007-08
Ward 2(3), Pune
Pune-411021
PAN: AGJPR2195N
M/s. Mahalaxmi Distributors
th
SDL Heights, 4 Floor,
Behind Patidar Bhavan, The Asst. Commissioner of
30 243/PUN/2018 Madhavnagar Road, Income Tax, Circle-1, 2012-13
Sangli - 416416 Sangli
PAN: AAFFM0228F
M/s. Santoshi Maa Traders
(Prop. Rajkumar G
Gehaney)
259/PUN/2018 Survey No.5/4, Nakhate The Income Tax Officer,
31 2011-12
Nagar, Lakewadi, Ward 8(2), Pune
Thergaon, Pune - 411033
PAN: AFYPG5580N
M/s. Prathamesh
Constructions,
The Asst. Commissioner of
261/PUN/2018 Plot No.44, Miraj MIDC,
32 Income Tax, Circle-2, 2011-12
Miraj, Dist. Sangli-416410
Sangli
PAN: AAFFP2620Q
M/s. Saptashrungi Trader
A/p Matori, The Asst. Commissioner of
33 505/PUN/2018 Tal Dist - Nashik Income Tax, Circle - 2, 2012-13
Nashik
PAN: ABZFS8741E
Mrs. Smita Dhanraj
Tawade,
401, Sahwas Shree Co-op.
794/PUN/2018 Hsg. Society, North Main The Income Tax Officer,
34 2010-11
Road, Koregaon Park, Ward 7(1), Pune
Pune - 411001
PAN: AAGPT5677G
Mrs. Neelam Mahabir
Nagori,
875/PUN/2018 10, New Bazaar, Khadki, The Income Tax Officer,
35 2009-10
Pune - 411001 Ward 2(3), Pune
PAN: AKUPP6471C
Sanghar Ceramics,
911/PUN/2018 732/A, Leela Chambers,
The Asst. Commissioner of 2009-10
36- & Opp Pushpa Heights, Pune
Income Tax, Circle 2(1), &
37 912/PUN/2018 Satara Road, Pune-411037
Pune 2010-11
PAN: ABBFS5768D
Sanjay Shah
732/A, Leela Chambers,
The Asst. Commissioner of
913/PUN/2018 Opp Pushpa Heights, Pune
38 Income Tax, Circle 2(1), 2012-13
Satara Road, Pune-411037
Pune
PAN: AIDPS7854F
ITA Nos.1718 & 1719/PUN/2017 & Ors
4
Uttam Bhagwanrao Patil & Ors
Sapna R Shah
732/A, Leela Chambers, The Asst. Commissioner of
39 914/PUN/2018 Opp Pushpa Heights, Pune Income Tax, Circle 2(1), 2012-13
Satara Road, Pune-411037 Pune
PAN: AZQPS4255G
Rahul Shah
732/A, Leela Chambers, The Asst. Commissioner of
40 915/PUN/2018 Opp Pushpa Heights, Pune Income Tax, Circle 2(1), 2012-13
Satara Road, Pune-411037 Pune
PAN: APTPS8958R
Jital Shah
732/A, Leela Chambers, The Asst. Commissioner of
41 916/PUN/2018 Opp Pushpa Heights, Pune Income Tax, Circle 2(1), 2012-13
Satara Road, Pune-411037 Pune
PAN: AKIPS4551Q
Danish Shah
732/A, Leela Chambers, The Asst. Commissioner of
42 917/PUN/2018 Opp Pushpa Heights, Pune Income Tax, Circle 2(1), 2012-13
Satara Road, Pune-411037 Pune
PAN: ACRPS4669L
Pradeep Sweets Pvt. Ltd.,
64/B, D-2, MIDC, The Dy. Commissioner of
43 961/PUN/2018 Chinchwad, Pune - 411019 Income Tax, Circle - 10, 2010-11
Pune
PAN: AABCP0354J
M/s. Shree Sai Associates,
Zagade Vasti, Pune-Nashik
44 1042/PUN/2018 The Income Tax Officer, Road, Chakan, Tal. Khed, 2013-14
Ward 8(5), Pune Pune - 410501
PAN: ABKFS1245A
Shri Yogesh C. Zagade,
The Income Tax Officer, Zagade Vasti, Pune-Nashik
45 1043/PUN/2018 Ward 8(5), Pune Road, Chakan, Tal. Khed, 2013-14
Pune - 410501
PAN: AAIPZ4928E
Shri Ganesh L. Zagade,
The Income Tax Officer, Zagade Vasti, Pune-Nashik
46 1044/PUN/2018 Ward 8(5), Pune Road, Chakan, Tal. Khed, 2013-14
Pune - 410501
PAN: AADPZ9511E
Shri Hrishikesh C. Zagade,
The Income Tax Officer, Zagade Vasti, Pune-Nashik
47 1045/PUN/2018 Ward 8(5), Pune Road, Chakan, Tal. Khed, 2013-14
Pune - 410501
PAN: AAKPZ5057G
Satyam Developers
Shop No.40, Sai Vihar
1080/PUN/2018 CHS., Plot No.78-80, The Dy. Commissioner of
48 Sector 15, CBD Belapur, Income Tax, Panvel Circle, 2010-11
Navi Mumbai - 400614 Panvel.
PAN: AAXFS3242F
Pushpak Arjundas Agrawal
(HUF), The Asst. Commissioner of
49 1218/PUN/2018 10/1202-21, Kagwade Income, Ichalkaranji Circle, 2006-07
Mala, Ichalkaranji Ichalkaranji
PAN: AAEHA2237D
ITA Nos.1718 & 1719/PUN/2017 & Ors
5
Uttam Bhagwanrao Patil & Ors
Arti Udhav Walawalkar,
Sahyadri Nagar, Kashinath
The Dy. Commissioner of
1266/PUN/2018 Bungalow, Near Khoja
50 Income Tax, Circle - 2, 2008-09
Colony, Sangli
Sangli
PAN: AACPW5363L
Ramesh Maruti Patil 1997-98
Prop. of M/s. Venus Video The Asst. Commissioner of To
1220/PUN/2018 Games, Plot No.74, Hind Income Tax, Circle - 2, 2000-01
51- To Co-Operative Society, Kolhapur
54 1223/PUN/2018 Ruikar Colony, Kolhapur
PAN: AGFPP6304H
Satish Subhash Bansal
Prop. Janki Foods, Sector
No.24, Plot No.388, The Asst. Commissioner of
55 1378/PUN/2018 Pradhikaran, Nigdi, Income Tax, Circle - 9, 2012-13
Pune - 411004 Pune
PAN: ADPPA3407K
Shri Dilip Manikchand
Nahar,
1841/PUN/2018 Akshaya Ginning &
Pressing Station Road, The Income Tax Officer,
56 2011-12
Near Mondha, A/P Partur, Ward - 2, Jalna
Jalna
PAN: AAKPN6118Q
The Asst. Commissioner of Shri Mahesh Bhagwat
Income Tax, Central Chaudhari,
1466/PUN/2018 Circle-2, Nashik 11, Swed Bindu, Shanti
2006-07
57- To Nagar, Yawal Road,
To
60 1469/PUN/2018 Bhusawal,
2009-10
Jalgaon - 425201
PAN: AAQPC1999N
Vasant Baburao Kute
401, Unique Residency, 28,
Modkeshwar Colony, The Dy. Commissioner of
2009-10
61 1482/PUN/2018 Indira Nagar, Income Tax, Central
Nashik - 422010 Circle-1, Nashik
PAN: AXEPK6275E
Pramod Vasant Kute
401, Unique Residency, 28,
1483/PUN/2018 Modkeshwar Colony, The Dy. Commissioner of 2010-11
62-
& Indira Nagar, Income Tax, Central &
63
1484/PUN/2018 Nashik - 422010 Circle-1, Nashik 2011-12
PAN: ANRPK2040G
M/s. Jadhav & Sons
Engineering Works,
1243/4, Block No.1, The Asst. Commissioner of
64 1715/PUN/2018 Shivaji Udyamnagar, Income Tax, Circle-1, 2011-12
Kolhapur - 416008 Kolhapur
PAN: AACFJ2285N
The Asst. Commissioner of M/s. Brihan Karan Sugar
Income Tax, Central Syndicate Pvt. Ltd.,
Circle-2, Nashik Plot No.5A, Behind Star
65 523/PUN/2019 Zone Mall, Nashik Pune 2010-11
Road, Nashik - 422101
PAN: AADCB3954C
ITA Nos.1718 & 1719/PUN/2017 & Ors
6
Uttam Bhagwanrao Patil & Ors
Shri Vivek Ramchandra
Pradhan The Dy. Commissioner of
66 517/PUN/2019 212/2, Hadapsar, Income Tax, Central Circle 2010-11
Pune - 411028 1(1), Pune
PAN: ABFPP7426D
Shri Dineshkumar Nathmal
Sharma, The Asst. Commissioner of
67 394/PUN/2019 1, Gills Bungalow, Income Tax, Circle-2, 2008-09
Gangapur Road, Nashik Nashik
PAN: ADBPS3815M
Late Suresh D. Agarwal
Through L/H Ajay S.
Agarwal, The Income Tax Officer,
68 511/PUN/2019 1021-169, Shola Chowk, 2006-07
Ward-1, Jalna
Sadar Bazar, Jalna
PAN: ABWPA4063G
Shri Murlidhar Sadhuram
Khemani,
th
4 Floor, Savitri Villa, Tidke The Asst. Commissioner of
69 1591/PUN/2018 Colony, 1363 Trimbak Income Tax, 2003-04
Road, Nashik - 422002 Central Circle 2, Nashik
PAN: AKWPK3428N
Shri Murlidhar Sadhuram
Khemani,
th
4 Floor, Savitri Villa, Tidke The Asst. Commissioner of
70 1662/PUN/2018 Colony, 1363 Trimbak Income Tax, 2000-01
Road, Nashik - 422002 Central Circle 2, Nashik
PAN: AKWPK3428N
Mr. Hanumant P. Jadhav
S.No.30, Parshuram Niwas,
At Post Handewadi,
The Income Tax Officer,
71 1672/PUN/2018 Devachi Uruli, 2007-08
Ward 14(2), Pune
Pune - 411028
PAN: ADOPJ3151A
Smt. Neetaben Bhupendra
Shah,
1842/PUN/2018 114-3, Pasi Kunj, The Income Tax Officer,
72 2009-10
Post Office Road, Jalna Ward - 1, Jalna
PAN: BHHPS0328C
Sanjay Ramchandra
Kadam,
M/s. Hirasham Traders,
1910/PUN/2018 Near S.T. Stand, The Income Tax Officer,
73 2010-11
Hirashyam Complex, Tal. Ward 2(4), Sangli
Kadegaon, Sangli
PAN: ARDPK6969Q
Jalna Siddhivinayak Alloys
Pvt. Ltd.,
The Asst. Commissioner of
1381/PUN/2018 C-4, Addl. MIDC Area,
74 Income Tax, Jalna Circle, 2006-07
Jalna - 431203
Jalna
PAN: AAACJ8761E
ITA Nos.1718 & 1719/PUN/2017 & Ors
7
Uttam Bhagwanrao Patil & Ors
Govind Gangadhar Sabne
Kavatha Road, Basmath, The Income Tax Officer,
75 1799/PUN/2018 Dist. Hingoli 2009-10
Ward & TPS Hingoli
PAN: ERFPS9038Q
Poonawalla Stud Farm Pvt.
Ltd.
16-B/1, Sarosh Bhavan, The Dy. Commissioner of
76 334/PUN/2019 Dr. Ambedkar Road, Pune Income Tax, 2012-13
Camp, Pune Central Circle 1(1), Pune
PAN: AADCP7447C
Poonawalla Astonish Stud
Farm Pvt. Ltd.
16-B/1, Sarosh Bhavan, The Dy. Commissioner of
77 335/PUN/2019 Dr. Ambedkar Road, Pune Income Tax, 2012-13
Camp, Pune Central Circle 1(1), Pune
PAN: AAHCS4077M
Poonawalla Stud Farm Pvt.
Ltd.
16-B/1, Sarosh Bhavan, The Dy. Commissioner of
78 344/PUN/2019 Dr. Ambedkar Road, Pune Income Tax, 2012-13
Camp, Pune Central Circle 1(1), Pune
PAN: AAACT6849F
Poonawalla Estates Stud &
Agri Farm Pvt. Ltd.
16-B/1, Sarosh Bhavan, The Dy. Commissioner of
79 343/PUN/2019 Dr. Ambedkar Road, Pune Income Tax, 2012-13
Camp, Pune Central Circle 1(1), Pune
PAN: AAHCP3543P
The Income Tax Officer, Hemraj Singh Parmar
Ward 7(1), Pune 06/096/173491Y, Regional
Centre, ECHS, C/o VHQ,
80 1919/PUN/2018 Southern Command, 2014-15
Camp, Pune - 411001
PAN: ABJPP2053L
Shri Jayantilal Oswal
259/A/5, Bhawani Peth,
The Dy. Commissioner of
81 192/PUN/2019 Pune - 411042 2013-14
Income Tax, Circle 6, Pune
PAN: AACPO7931N
Assessee by : Shri Kishore Phadke - Sl.No.1, 2, 30, 71 and 81
Shri Sharad Shah - Sr. No.4
Shri M.K. Kulkarni - Sr. No.5, 9 - 11, 21, 27, 32, 56
and 68
Shri M.R. Bhagwat - Sr. No.6
Shri P.S. Shingte - Sr. No.8, 28, 33, 49, 51-54, 61-63
and 67
Shri Rajeev Kulkarni - Sr. No.12 - 15, 19 and 20
Shri Vipin Gujarathi - Sr. No.17 and 43
ITA Nos.1718 & 1719/PUN/2017 & Ors
8
Uttam Bhagwanrao Patil & Ors
Shri Nikhil Pathak - Sr. No.22 - 26, 36 - 42, 57-60
and 76-79
Shri Hari Krishan - Sr. No.34 and 35
Smt. Deepa Khare - Sr. No.50
Shri Prateek Jha - Sr. No.66
Shri Sanket Joshi - Sr. No.69 and 70
Shri Sarang Gudhate - Sr. No.73
Shri K. Srinivasan - Sr. No.74
Shri Pratik Sandbhor - Sr. No.75
Written Submission - Sr. No.64
None - Sr. No.3, 7, 16, 18, 29, 31, 44 - 48, 55, 65, 72
and 80.
Revenue by : Mrs. Nandita Kanchan, CIT-DR - Sr.No.44
Shri M.K. Verma - all appeals
सन
ु वाई की तारीख / घोषणा की तारीख /
Date of Hearing : 08.07.2019 / Date of Pronouncement: 19.07.2019
15.07.2019
आदे श / ORDER
PER SUSHMA CHOWLA, JM:
This bunch of appeals filed by different assessee and Revenue are against respective orders of CIT(A) relating to different assessment years against penalty levied under section 271(1)(c) of the Income Tax Act, 1961 (in short „the Act‟).
2. In this bunch of appeals filed / against different assessee, common thread is the issue raised against levy of penalty for concealment under section 271(1)(c) of the Act. Majorly the appeals are filed by assessee as they are aggrieved by the aforesaid levy of penalty and in some cases, appeals are also filed by Revenue against order of CIT(A) in deleting the same. Since the issue raised in present set ITA Nos.1718 & 1719/PUN/2017 & Ors 9 Uttam Bhagwanrao Patil & Ors of appeals is common, we proceed to decide the issue vide this consolidated order for the sake of convenience.
3. In some of the cases, no appearance was put in by any of the Authorized Representatives or by the assessee, but since the issue stands covered, we proceed to decide the same after hearing the learned Departmental Representative for the Revenue.
4. In one of the appeals i.e. ITA No.2494/PUN/2017, none appeared on behalf of assessee and there was delay of 24 days in filing the appeal late. In another appeal i.e. ITA No.1662/PUN/2018, there was delay of 10 days in filing the appeal late. However, the assessee in both the appeals has filed applications for condonation of delay and in view thereof, we find merit in the same and the delay of 24 and 10 days, respectively, is condoned.
5. On perusal of records and after hearing the learned Authorized Representatives, we find that in this bunch of appeals, the Assessing Officer while completing assessment proceedings had initiated penalty proceedings for concealment under section 271(1)(c) of the Act. In some of the assessment orders while recording satisfaction for initiating the aforesaid penalty proceedings, the Assessing Officer has failed to mention the limb on account of which the assessee was held to have erred i.e. whether it is concealment of income or furnishing of inaccurate particulars of income. In some of the cases, we note that the Assessing Officer while recording satisfaction has initiated penalty proceedings for the default of both i.e. furnishing of inaccurate particulars of income and / or concealment of income. In some of the cases, the Assessing Officer has mentioned that penalty proceedings need to be initiated for furnishing inaccurate particulars of income in ITA Nos.1718 & 1719/PUN/2017 & Ors 10 Uttam Bhagwanrao Patil & Ors view of Explanation (1) to section 271(1)(c) of the Act. It may be pointed out herein itself that Explanation (1) deals with concealment of income. In some of the cases, though the Assessing Officer had initiated penalty proceedings for one of the limbs i.e. either for furnishing inaccurate particulars of income or for concealing the income but while levying penalty, the same has been levied on alternate limb i.e. in case the penalty proceedings are initiated for furnishing inaccurate particulars of income but while levying penalty, the Assessing Officer comes to a finding that the same is to be levied for concealment of income or vice-versa. The Assessing Officer in some cases have also levied penalty for default of both of the limbs of section 271(1)(c) of the Act or no limb is mentioned in the penalty order.
6. In such scenario, the question which arises is that where the Assessing Officer has failed to mention specific charge for initiating penalty proceedings and/or if he has recorded satisfaction for initiating penalty proceedings for non fulfillment of one of the limbs of section 271(1)(c) of the Act and while levying penalty either penalty is levied for the default of both the limbs or there is mention of none of the limbs or there is mention of contrary limb as to what it was initiated for, then whether penalty levied in such cases can be sustained in the eyes of law?
7. Different learned Authorized Representatives for the assessee have stressed that the issue stands covered by number of decisions of Pune Bench of Tribunal, wherein this issue has been decided in line with the ratio laid down by the Hon‟ble Bombay High Court in CIT Vs. Shri Samson Perinchery (2017) 392 ITR 4 (Bom). In respect of appeals filed by Revenue, the assessee - respondent has similarly pleaded. However, the learned Departmental Representative for the Revenue has placed reliance on the orders of Assessing Officer / CIT(A) and find justification in the aforesaid levy of penalty for concealment under section 271(1)(c) of the Act.
ITA Nos.1718 & 1719/PUN/2017 & Ors 11 Uttam Bhagwanrao Patil & Ors
8. We find that we have already adjudicated this issue in number of cases in turn, relying on the ratio laid down by the Hon‟ble Bombay High Court in CIT Vs. Shri Samson Perinchery (supra), 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 facts of the said case, the Tribunal had deleted penalty imposed under section 271(1)(c) of the Act by holding that initiation of penalty proceedings by Assessing Officer was for furnishing inaccurate particulars of income while the order imposing penalty was for concealment of income. The grievance of Revenue before the Hon‟ble High Court was that there was no difference between furnishing of inaccurate particulars of income and concealment of income. The Hon‟ble High Court held as under:-
"6. The above submission on the part of the Revenue is in the face of the decision of the Supreme Court in T. Ashok Pai v. CIT [2007] 292 ITR 11 (SC) [relied upon in Manjunath Cotton & Ginning Factory (supra)] - wherein it is observed that concealment of income and furnishing of inaccurate particulars of income in section 271(1)(c) of the Act, carry different meanings/connotations. Therefore, the satisfaction of the Assessing Officer with regard to only one of the two breaches mentioned under section 271(1)(c) of the Act, for initiation of penalty proceedings will not warrant/permit penalty being imposed for the other breach. This is more so, as an assessee would respond to the ground on which the penalty has been initiated/notice issued. It must, therefore, follow that the order imposing penalty has to be made only on the ground of which the penalty proceedings has been initiated, and it cannot be on a fresh ground of which the assessee has no notice."
9. The Hon‟ble Goa Bench of Bombay High Court in a latest decision in the case of Pr.CIT Vs. New Era Sova Mine & Ors. in Tax Appeals Nos.70, 69 of 2018 & 6 of 2019, judgment dated 18.06.2019 applying the ratio laid down in CIT Vs. Shri Samson Perinchery (supra) have also similarly held.
10. Applying the said principle laid down by the Hon‟ble Bombay High Court in CIT Vs. Shri Samson Perinchery (supra), it transpires that in cases of levy of penalty under section 271(1)(c) of the Act, the Assessing Officer should be clear as ITA Nos.1718 & 1719/PUN/2017 & Ors 12 Uttam Bhagwanrao Patil & Ors to which of the two limbs of said section are attracted or has been contravened and for initiating penalty proceedings give show cause accordingly. It cannot be the case of Revenue that initiation would be on one limb i.e. for furnishing inaccurate particulars of income and imposition of penalty on the other limb i.e. concealment of income or vice-versa. The charge against assessee should be clear and specific in order to allow the assessee to meet the case of Revenue of concealing the income or filing inaccurate particulars of income. In the absence of such show cause notice being issued to the assessee, penalty proceedings cannot stand. Similarly, while levying penalty, the Assessing Officer should be clear as to which limb of section / charge has not been fulfilled by assessee to make him liable for levy of penalty for concealment of income.
11. Now, coming to present set of appeals, in such scenario, where the Assessing Officer has failed to mention specific charge as to which limb of section 271(1)(c) of the Act has not been fulfilled by the assessee and give proper show cause notice to the assessee in this regard, then the levy of penalty in such circumstances suffers from infirmity. Similarly where the Assessing Officer has recorded satisfaction in the assessment order as to both limbs of section 271(1)(c) of the Act and initiated penalty proceedings, such order also suffers from infirmity. Where no charge is mentioned in assessment order, then also for non recording of proper satisfaction, the initiation of penalty proceedings is not as per law and the penalty order passed in such cases thus, cannot be upheld. Where, in some cases, penalty has been levied for non fulfillment of both limbs of section 271(1)(c) of the Act and / or for one of the limbs for initiating, for other limb for levy and in some cases, no limb is mentioned, such orders levying penalty under section 271(1)(c) of the Act cannot stand in the eyes of law. We accordingly, delete penalty levied under section 271(1)(c) of the Act. Consequently, appeals filed by assessee in this ITA Nos.1718 & 1719/PUN/2017 & Ors 13 Uttam Bhagwanrao Patil & Ors regard stands allowed. Following the same parity of reasoning, the appeals filed by Revenue also stands dismissed for non fulfillment of conditions laid down in section 271(1)(c) of the Act for recording of satisfaction or levying penalty as per section.
12. In the result, the appeals of assessee are allowed and appeals of Revenue are dismissed.
Order pronounced on this 19th day of July, 2019.
Sd/- Sd/-
(ANIL CHATURVEDI) (SUSHMA CHOWLA)
ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER
ऩुणे / Pune; ददनाांक Dated : 19th July, 2019.
GCVSR
आदे श की प्रयतलऱपप अग्रेपषत/Copy of the Order is forwarded to :
1. अऩीऱाथी / The Appellant;
2. प्रत्यथी / The Respondent;
3. आयकर आयुक्त(अऩीऱ) / The concerned CIT(A);
4. आयकर आयक् ु त / The concerned CIT,
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 ,ऩण ु े / ITAT, Pune