Income Tax Appellate Tribunal - Jaipur
Shankar Lal Khandelwal, Jaipur vs Assessee on 20 November, 2015
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI R.P. TOLANI, JM & SHRI VIKRAM SINGH YADAV, AM
vk;dj vihy la-@ITA No. 340/JP/2014
fu/kZkj.k o"kZ@Assessment Years : 2005-06
Shankar Lal Khandelwal, cuke Commissioner of Income
A-2, Rana Pratap nagar, Vs. Tax, Central, Jaipur.
Jhotwara, Jaipur
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ADRPK 5003 F
vihykFkhZ@Appellant izR;FkhZ@Respondent
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s Assessee by : Shri K.L. Moolchandani (Adv)
jktLo dh vksj ls@ Revenue by : Shri B.K. Gupta (CIT)
lquokbZ dh rkjh[k@ Date of Hearing : 04/11/2015
mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 20/11/2015
vkns'k@ ORDER
PER: VIKRAM SINGH YADAV, A.M.:
This is an appeal filed by the assessee against the order dated 28/02/2014 passed by the ld Commissioner of Income (Central), Jaipur for A.Y. 2005-06. The ground of appeal taken by assessee is as under:-
"On the facts and in the circumstances of the case the learned CIT, Central, Jaipur has factually and legally erred in setting aside the penalty order passed U/s 271(1)(c) of the Act on 24/02/2012 imposing penalty of Rs. 30,000/- without appreciating the facts of the case in right perspective and also without pointing out as to the penalty
2 ITA 340/JP/2014_ Shankar Lal Khandelwal. Vs. CIT order so passed was prejudicial to the revenue and erroneous. Thus, the order passed U/s 263 of the Act deserves to be deleted."
2. The brief facts of the case are that the assessee has filed its return U/s 153A of the Income Tax Act, 1961 (in short the Act) wherein it declared certain additional income on account of sale of plot amounting to Rs. 10,52,900, on account of furniture job work Rs. 20,100/-, on account of sale of electronics items Rs. 18,200/- and on account of brokerage income Rs. 40,000/-. The above income was not declared earlier in the return filed U/s 139 of the Act declaring total income of Rs. 3,01,754/-. The assessment was completed U/s 153A read with Section 144 of the Act determining the total income at Rs. 2,29,64,387/- wherein certain additions were made. The matter was carried in appeal before the ld CIT(A) and thereafter before the Hon'ble ITAT wherein the Coordinate Bench sustained the addition of Rs. 79,000/- on account of unexplained cash credit and an additional income from taxi business amounting to Rs. 80,000/- was confirmed by the Coordinate Bench. The penalty proceedings U/s 271(1)(c) of the Act was initiated at the time of passing of assessment order U/s 153A read with Section 144 of the Act and thereafter the Assessing Officer passed the penalty order wherein he levied the penalty of Rs. 30,000/- on the 3 ITA 340/JP/2014_ Shankar Lal Khandelwal. Vs. CIT concealed income of Rs. 79,000/-, as confirmed by the Coordinate Bench in the quantum proceedings.
2.1. The ld CIT on perusal of the records, issued a show cause u/s263 of the Act wherein it was mentioned that on examination of records the additional income disclosed in the return filed U/s 153A of the Act as well as income from taxi business were not considered for the purpose of levy of penalty U/s 271(1)(c) of the Act read with Explanation 5A, which has been inserted by way of Finance Act, 2009 w.e.f. 01/6/2007. Based on that, the ld CIT proposed to revise assessment order dated 30/12/2009 passed under section 153A read with Section 144 of the Act as well as the penalty order passed U/s 271(1)(c) dated 24/2/2012. 2.2. In response, the assessee submitted that the assessment order passed U/s 153A read with Section 144 of the Act cannot be revised as the same is barred by limitation U/s 263(2) of the Act. Further, the assessee submitted that the assessment order cannot be revised for omission of non-initiation of penalty proceedings as per Explanation 5A of Section 271(1)(c) of the Act.
3. The ld CIT after considering the submissions of the assessee passed the order U/s 263 of the Act dated 28/2/2014 wherein he held 4 ITA 340/JP/2014_ Shankar Lal Khandelwal. Vs. CIT that the penalty order passed U/s 271(1)(c) of the Act is erroneous and prejudicial to the interest of revenue and hence the same is set aside to be framed afresh by the Assessing Officer. The relevant finding of ld. CIT is as follows :-
" 7. The reply of the AR is analyzed as under :
Penalty proceedings u/s 271(1)(c) of the IT Act were initiated at the time of completion of assessment proceedings which remained in abeyance due to pendency of appeals. After the order of the ITAT, a penalty notice on 23.01.2012 was again issued by the AO.
The Penalty order u/s 271(1)(c) was passed on 24.02.2012 and a penalty of Rs. 30,000/- was imposed upon the assessee on confirmed addition of Rs. 79,000/- u/s 68 of the IT Act after due approval of the JCIT Range.
However, on subsequent examination of the case it is seen that while filing return u/s 153A, the assessee had declared additional income (mentioned in para 5 above) which was not disclosed in the return u/s 139 of the IT Act. Taxi business income was also not disclosed in original return u/s 139, income of which was finally determined by the ITAT at Rs. 80,000/-. While completing penalty proceedings on 24.02.2012, the aforesaid additional income was not considered for the purpose of penalty u/s 271(1)(c) of the IT Act.
5 ITA 340/JP/2014_ Shankar Lal Khandelwal. Vs. CIT In this case, search & seizure action was conducted on 16.11.2007. Explanation 5A of Section 271(1)(c) has been inserted by way of Finance Act 2009 w.e.f. 01.06.2007. This Explanation provides that where the return of income has been furnished before the search but such income has not been declared therein then notwithstanding that such income is declared by the assessee in any return of income furnished on or after the date of search, he shall for the purpose of imposition of a penalty under clause (c) of sub-section (1) of Section 271, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income. The above additional income has not been considered for the purpose of penalty within the meaning of the above Explanation. The assessment order is not erroneous or prejudicial to the interest of revenue as penalty proceedings have been initiated u/s 271(1)(c) and this initiation is sufficient for imposing penalty u/s 271(1)(c) on the additional income not disclosed in the original return and income from taxi business upheld by Hon'ble ITAT."
4. Being aggrieved, the assessee is in appeal before us against the said order passed by CIT U/s 263 of the Act.
4.1. During the course of hearing, the ld counsel submitted that the ld CIT, as apparent from the show cause notice dated 25/2/2013, intend 6 ITA 340/JP/2014_ Shankar Lal Khandelwal. Vs. CIT revising assessment order passed U/s 153A r/w 144 of the Act as ld. CIT was apparently of the view that in the assessment proceedings, the penalty proceedings were not correctly initiated with reference to Explanation 5A to Section 271(1)(c) of the Act, and on being pointed out by the AR that the same is barred by limitation, he went ahead and set aside the penalty order passed U/s 271(1)(c) of the Act. Secondly, the ld AR submitted that the assessment order passed U/s 153A read with Section 144 lacks inherent jurisdiction for levy of penalty in respect of additional income offered U/s 153A of the Act for the simple reason that there is no recording of satisfaction and initiation of penalty proceedings under Explanation 5A of Section 271(1)(c) of the Act in the assessment order. Thirdly, whether penalty proceedings were initiated properly after recording proper satisfaction is also a debatable point for which provisions of section 263 of the Act could not be legally invoked. 4.2. Ld. D/R relied on the order of the ld. CIT.
4.3. We have heard the rival contentions of both the parties and perused the material available on the record. Firstly it is not in dispute that the assessee has disclosed additional income in the return filed in response to notice U/s 153A of the Act and the said income was not 7 ITA 340/JP/2014_ Shankar Lal Khandelwal. Vs. CIT disclosed in the original return filed U/s 139 of the Act. Secondly it is also not in dispute that the provisions of Explanation 5A which has been inserted by way of Finance Act, 2009 w.e.f. 1.6.2007 are effective and applicable for the year under consideration. The relevant provisions of Explanation 5A are as under:-
"Explanation 5A.--Where in the course of a search initiated under section 132 on or after the 1st day of June, 2007, the assessee is found to be the owner of,--
(i) any money, bullion, jewellery or other valuable article or thing (hereinafter in this Explanation referred to as assets) and the assessee claims that such assets have been acquired by him by utilizing (wholly or in part) his income for any previous year; or
(ii) any income based on any entry in any books of account or other documents or transactions and claims that such entry in the books of account or other documents or transactions represents his income (wholly or in part) for any previous year, which has ended before the date of the search and the due date for filing the return of income for such year has expired and the assessee has not filed the return, then, notwithstanding that such income is declared by him in any return of income furnished on or after the date of the search, he shall, for the purposes of imposition of a penalty under clause (c) of sub-section (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income. "
4.4. Regarding the contentions of the assessee that since CIT could not revise the assessment order passed U/s 153A of the Act r/w sec.
8 ITA 340/JP/2014_ Shankar Lal Khandelwal. Vs. CIT 144 as the same was barred by limitation, he went ahead and revised the penalty order, the same may be the intention of the ld CIT but when he realized after being pointed out by the assessee that order is barred by limitation, he did not go ahead and revise the assessment order. However, in our view the said argument of the ld. A/R cannot be a basis for setting aside the order passed by the ld CIT in respect of the penalty order u/s 271(1)(c) of the Act. Secondly regarding the contention of the ld AR that the penalty order cannot be held to be erroneous and prejudicial to the interest of revenue given that at first place there is no mention of explanation 5A to Section 271(1)(c) in the assessment order.
In this regard, we have perused the assessment order and on going through that it is clear that the order has been passed pursuant to the search and seizure operations U/s 132(1) of the Act, subsequently notice U/s 153A was issued. Thereafter the assessee filed the return U/s 153A of the Act and the Assessing Officer went ahead and make the additions. Further in the assessment order the Assessing Officer has mentioned as under:-
9 ITA 340/JP/2014_ Shankar Lal Khandelwal. Vs. CIT " It can be reasonably inferred that the assessee has concealed the particulars of income and has furnished inaccurate particulars of income within the meaning of Section 271(1)(c) of the Act and I am satisfied that it is fit case for initiation of penalty proceeding U/s 271(1)(c) of the Act and the same are being initiated below."
It is ample clear that on perusal of the assessment order as well as the fact that the Assessing Officer has recorded the satisfaction, the Assessing Officer was well within his power and the jurisdiction to initiate and levy penalty U/s 271(1)(c) of the Act in respect of the subject matter of income as reported in the return filed under Sec 153A of the Act as well as the additions made by him. In our considered view it is not necessary that the Assessing Officer has to record satisfaction with respect to the specific provision or the explanation U/s 271(1)(c) of the Act while initiating the penalty proceedings. A useful reference can be drawn to the decision of Hon'ble Supreme Court in the case of K.P. Madhusudhanan vs. CIT, 251 ITR 99 (SC).
" The Explanation to section 271(1)(c) is a part of section 271. When the Assessing Officer or the Appellate Assistant Commissioner issues a notice under section 271, he makes the assessee aware that the provisions thereof are to be used against 10 ITA 340/JP/2014_ Shankar Lal Khandelwal. Vs. CIT him. These provisions include the Explanation. By virtue of the notice under section 271 the assessee is put to notice that, if he does not prove, in the circumstances stated in the Explanation, that his failure to return his correct income was not due to fraud or neglect, he shall be deemed to have concealed the particulars of his income or furnished inaccurate particulars thereof, and, consequently be liable to the penalty under the section. No express invocation of the Explanation to section 271 in the notice under section 271 is necessary before the provisions of the Explanation are applied."
Respectfully following the decision of the Hon'ble Supreme Court (supra), we are of the considered view that where the AO has recorded his satisfaction for initiation of penalty proceedings u/s 271(1)(c) in the assessment order, mere non-mentioning of Explanation 5A will not result in lack of jurisdiction to levy penalty by AO. 4.5. Now coming to the argument of the ld AR that by levying of penalty, there was proper application of mind by the Assessing Officer and if the order of the ld CIT setting aside the penalty order is sustained, the same will result in change of opinion. We have perused the penalty order as well as submissions of the ld AR, in our view the 11 ITA 340/JP/2014_ Shankar Lal Khandelwal. Vs. CIT matter relating to levy of penalty in respect of additional income disclosed U/s 153A of the Act was not examined by the Assessing Officer at all. There is no whisper or discussion in the penalty order or the ld AR has not brought to our notice any show cause issued by AO or response/submission filed by the assessee wherein the Assessing Officer inquired about levy of penalty in respect of additional income disclosed u/s 153A and considered the same while passing the penalty order. In light of above, in our considered view, it is clearly a case of lack of enquiry as well as application of law where the Assessing Officer has failed to take into consideration the Explanation 5A to Section 271(1)(c) of the Act. Secondly the said explanation talks about deemed concealment of particulars of income or furnishing inaccurate particulars of income subsequent to initiation of search and filing of return of income.
4.6. In the entirety of facts and circumstances of the case, it is clearly a case where the Assessing Officer has erred in not considering the impact of explanation 5A to Section 271(1)(c) of the Act and whether the same are applicable to the facts of the case and accordingly the order passed U/s 271(1)(c) is clearly erroneous so far as prejudicial to 12 ITA 340/JP/2014_ Shankar Lal Khandelwal. Vs. CIT the interest of revenue as rightly held by the ld CIT. It may be noted that this decision is limited to invocation of power by ld. CIT u/s 263 and the assessee is at liberty to argue its case before the AO on merits. We, accordingly do not like to interfere in the order of the ld CIT passed U/s 263 of the Act and hence the ground taken by the assessee is dismissed.
5. In the result, the appeal of the assessee is dismissed.
Order pronounced in the open court on 20.11.2015.
Sd/- Sd/- ¼vkj-ih-rksykuh½ ¼foØe flag ;kno½ (R.P.Tolani) (Vikram Singh Yadav) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 20 November, 2015 *Ranjan
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- Shri Shankar Lal Khandelwal, Jaipur.
2. izR;FkhZ@ The Respondent- The CIT, Central, Jaipur
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr@ CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 340/JP/2014) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar 13 ITA 340/JP/2014_ Shankar Lal Khandelwal. Vs. CIT