2017 (8) TMI 1468 - AT - Income Tax

Penalty u/s 271AAA - non-payment of all the due of taxes and interest thereupon, till the finalization of penalty proceedings - non-compliance of the contention laid down in clause (iii) of sub-section (2) of section 271AAA - time limit is prescribed for payment of tax and interest thereupon - Held that - Admittedly, in this case also the assessee had also deposited tax due along with interest. Since no time limit has been prescribed for deposit of such dues and even, as discussed above, there was no overt act on the part of the assessee to avoid taxes, as his request for deposit of taxes through instalments has been accepted and the assessee has already tendered post-dated cheques before the conclusion of the penalty, hence, in the light of the observations of the Hon ble Supreme Court in the case of Gebilal Kanhialal HUF (2012 (9) TMI 297 - SUPREME COURT), in our view, the third condition of payment of taxes as per provisions of section 271AAA(2)(iii) of the Act stood complied with. AO has intended to initiate penalty proceedings u/s 271AAA(1) of the Act, however, the wording written in the body of the letter does not conform to the charges of the provisions of section 271AAA of the Act, rather, the assessee has been show caused on the charge of furnishing of inaccurate particulars of income, which falls under the scope and purview of section 271(1)(c) of the Act. The assessee, therefore, is not show caused for levy of penalty under the provisions of section 271AAA, rather for doing an act inviting penalty u/s 271(1)(c) of the Act, which otherwise is neither arising out of the facts of the case nor established against the assessee. Thus, the penalty proceedings conducted against the assessee u/s 271AAA of the Act were invalid at its very inception because of the defective and invalid show cause notice, rendering the entire penalty proceedings void ab initio. The penalty levied against the assessee is thus not sustainable - Decided in favour of assessee

Summary

Issues Involved:
1. Validity of penalty under Section 271AAA of the Income-tax Act, 1961.
2. Compliance with the conditions under Section 271AAA(2) for immunity from penalty.
3. Validity of the notice issued under Section 274 read with Section 271AAA.
4. Limitation period for the levy of penalty.

Detailed Analysis:

1. Validity of Penalty under Section 271AAA:
The assessee appealed against the confirmation of the penalty levied by the Assessing Officer (AO) under Section 271AAA. The AO observed that the assessee failed to substantiate the manner of earning the undisclosed income and levied a penalty of 10% on the undisclosed income amounting to ?2,07,50,000/-. The CIT (A) upheld the penalty on the grounds that the assessee did not fulfill the conditions of Section 271AAA(2)(iii) as the taxes were paid much later.

2. Compliance with Conditions under Section 271AAA(2):
The Tribunal examined whether the assessee met the three conditions under Section 271AAA(2) for immunity from penalty:
- Condition (i): The assessee admitted the undisclosed income in a statement under Section 132(4) and specified the manner in which such income was derived. The Tribunal found that the assessee had indeed admitted the income as business income during the search.
- Condition (ii): The manner of earning the income was substantiated. The Tribunal noted that the AO accepted the surrendered income as business income, implying that the manner of earning was substantiated.
- Condition (iii): The assessee paid the tax together with interest. The Tribunal referred to the Supreme Court's decision in Asstt. CIT v. Gebilal Kanhailal HUF, which held that no specific time limit is prescribed for payment of tax and interest under Section 271AAA. Since the assessee had paid the taxes, albeit late, and had shown bona fide intent by submitting post-dated cheques, the Tribunal concluded that this condition was also met.

3. Validity of Notice under Section 274 Read with Section 271AAA:
The Tribunal found that the notice issued to the assessee was defective. The notice intended to initiate penalty proceedings under Section 271AAA but mentioned charges related to furnishing inaccurate particulars of income, which fall under Section 271(1)(c). This discrepancy rendered the penalty proceedings invalid from the start, making the penalty unsustainable.

4. Limitation Period for Levy of Penalty:
Although the Tribunal did not delve deeply into the limitation issue, it noted that the penalty proceedings were invalidated on other grounds, and thus, the limitation issue was left open for future adjudication.

Conclusion:
The Tribunal allowed the appeal, holding that the penalty under Section 271AAA was not sustainable due to the assessee's compliance with the conditions for immunity, the defective notice issued, and the bona fide intent shown by the assessee in paying the taxes. The penalty levied by the lower authorities was ordered to be deleted.