Income Tax Appellate Tribunal - Mumbai
Review Ventures Llp (Formerly-Review ... vs Assistant Commissioner Of Income Tax, ... on 20 March, 2019
आयकर अपीलीय अधिकरण "D " न्यायपीठ मब
ुं ई में ।
IN THE INCOME TAX APPELLATE TRIBUNAL " D" BENCH, MUMBAI
श्री महावीर स हिं , न्याययक दस्य एविं श्री मनोज कुमार अग्रवाल के मक्ष ।
BEFORE SRI MAHAVIR SINGH, JM AND SRI MANOJ KUMAR AGGARWAL, AM
Aayakr ApIla saM . / ITA No. 4709/Mum/2017
(inaQa- a rNa baYa- / Assessment Year 2013-14)
M/s Review Ventures LLP The Asst. Commissioner of
(Formerly - Review Finance Income Tax, Circle -1(3)(1)
Pvt. Ltd.) Vs. Room No. 5, Aayakar
6-C, Agarwal House, D -Road, Bhavan, M.K. Road,
Churchgate, Mumbai-400 020 Mumbai
(ApIlaaqaI- / Appellant) .. (p`%yaqaaI- / Respondent)
स्थायी ले खा िं . / PAN No. AABCR7647E
अपीलाथी की ओर े / Appellant by : Shri Rushabh Mehta, AR
प्रत्यथी की ओर े / Respondent by : Shri Abirama Karthikeyan, DR
ुनवाई की तारीख / Date of hearing: 20.03.2019
घोषणा की तारीख / Date of pronouncement : 20.03.2019
AadoSa / O R D E R
महावीर स हिं , न्याययक दस्य/
PER MAHAVIR SINGH, JM:
This appeal filed by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-3, Mumbai [in short CIT(A)], Appeal No. CIT(A)-3/ITO-1(3)(1)/IT-119/2016-17 vide order dated 28.04.2017. The Assessment was framed by the Asst. Commissioner of Income Tax, Circle-1(3)(1), and Mumbai (in short ACIT/ITO / AO') for the 2 ITA No . 4 7 09 / Mu m /2 0 17 A.Y. 2013-14 vide orders dated 15.03.2016 under section 143(3) of the Income Tax Act, 1961 (hereinafter 'the Act'). The penalty under dispute was levied by ACIT Circle 1(3)1, Mumbai u/s 271 (1) (c) of the Act vide his order dated 15.03.2016.
2. The only issue in this appeal of assessee is against the levy of penalty under section 271(1)(c) of the Act by the AO and confirmed by CIT(A). For this assessee has raised the first jurisdictional issue vide following ground No. 1: -
"On the facts and circumstances of the case, the ld. CIT(A) erred in holding that the penalty order passed under section 271(1)(c) of the Income Tax Act, 1061 is void-ab-initio, invalid and bad in law."
3. At the outset, the learned Counsel for the assessee took us through the assessment order vide Para 4.5 which reads as under: -
"4.5 Penalty proceedings under section 271(1)(c) are initiated separately for concealing/ furnishing inaccurate particulars of income."
4. The learned Counsel for the assessee stated that the AO initiated the penalty proceedings while framing the assessment order on both the counts i.e. for concealing the particulars of income as well as for furnishing of inaccurate particulars of income in view of the above Para 4.5. Further, the learned Counsel for the assessee took us through the assessee's paper book at page 53 and 54 wherein, notice under section 274 read with section 271(1)(c) of the Act is enclosed. The learned Counsel for the assessee drew our attention to the notice and stated that 3 ITA No . 4 7 09 / Mu m /2 0 17 the AO has not strike off the inappropriate words or paragraph and accordingly, AO is not clear about the specific charge for levy of penalty under section 271(1)(c) of the Act. According to the learned Counsel, the penalty is initiated for disallowance of depreciation. He narrated that the depreciation on residential property was claimed by Assessee Company at the rate of 10%, which is the depreciation rate for building used for business purposes. The learned Counsel admitted that in quantum the assessee has accepted the addition and not filed any appeal. On the other hand, the learned Sr. DR relied on the assessment order and the order of CIT(A) for confirmation of penalty.
5. We have heard the rival contentions and gone through the facts and circumstances of the case. We noted from the assessment order that the AO has initiated the penalty proceedings for concealment of particulars of income as well as for furnishing of inaccurate particulars of income under section 271(1)(c) of the Act. We find that this issue is squarely covered by the decision of Hon'ble Bombay High Court in the case of CIT vs Samson Perinchery (2013) 392 ITR 4 (Bom), we noted that at the time of hearing the learned Sr. DR has not doubted the facts of the case but pointed out that there is due application of mind by the AO which can be demonstrated from the discussion in the assessment order and the order of CIT(A), wherein if discussed the reasons for the disallowance of depreciation, he has recorded the satisfaction that the penalty proceedings are initiated under section 271(1)(c) of the Act for concealing of particulars of income as well as for furnishing of inaccurate particulars of income. We are of the view, that the Sr. DR has admitted to demonstrate the application of mind by the AO but it is no difference in as much as that the AO in assessment order as initiated the penalty proceedings for both the charges i.e. for furnishing of inaccurate 4 ITA No . 4 7 09 / Mu m /2 0 17 particulars of income as well as concealment of particulars of income. We find that this issue is squarely covered by the decision of Hon'ble Bombay High Court in the case of Samson Perinchery (supra) wherein it is held as under: -
"The impugned order of the Tribunal deleted the penalty imposed upon the Respondent Assessee. This by holding that the initiation of penalty under Section 271(1)(c) of the Act by Assessing Officer was for furnishing inaccurate particulars of income while the order imposing penalty is for concealment of income. The impugned order holds that the concealment of income and furnishing inaccurate particulars of income carry different connotations. Therefore, the Assessing Officer should be clear as to which of the two limbs under which penalty is imposable, has been contravened or indicate that both have been contravened while initiating penalty proceedings. It cannot be that the initiation would be only on one limb i.e. for furnishing inaccurate particulars of income while imposition of penalty on the other limb i.e. concealment of income. Further, the Tribunal also noted that notice issued under Section 274 of the Act is in a standard proforma, without having striked out irrelevant clauses therein. This indicates non application of mind on the 5 ITA No . 4 7 09 / Mu m /2 0 17 part of the Assessing Officer while issuing the penalty notice."
6. Respectfully, following the Hon'ble High Court, we delete the penalty on this jurisdictional issue. Hence, we need not to go into the merits of the case.
7. In the result, the appeal of assessee is allowed.
Order pronounced in the open court on 20-03-2019.
Sd/- Sd/-
(मनोज कुमार अग्रवाल / MANOJ KUMAR AGGARWAL) (महावीर स ह
िं /MAHAVIR SINGH)
(लेखा दस्य / ACCOUNTANT MEMBER) (न्याययक दस्य/ JUDICIAL MEMBER)
मुिंबई, ददनािंक/ Mumbai, Dated: 20-03-2019.
सदीप सरकार, व.निजी सधिव / Sudip Sarkar, Sr.PS आदे श की प्रनिललपप अग्रेपिि/Copy of the Order forwarded to :
1. अपीलाथी / The Appellant
2. प्रत्यथी / The Respondent.
3. आयकर आयुक्त(अपील) / The CIT(A)
4. आयकर आयुक्त / CIT
5. ववभागीय प्रयतयनधि, आयकर अपीलीय अधिकरण, मिंब ु ई / DR, ITAT, Mumbai
6. गार्ड फाईल / Guard file.
आदे शािसार/ BY ORDER, त्यावपत प्रयत //True Copy// उप/सहायक पुंजीकार (Asstt. Registrar) आयकर अपीलीय अधिकरण, मुिंबई / ITAT, Mumbai