2018 (10) TMI 1783 - AT - Income Tax

Penalty u/s 271(1)(c) - Addition of unexplained cash credit deposited in the bank u/s 68 - penalty has been imposed for intentionally furnishing inaccurate particulars of income - HELD THAT - When the assessee has not been specifically made aware of the charges leveled against him as to whether there is a concealment of income or furnishing of inaccurate particulars of income on his part the penalty u/s 271(1)(c) of the Act is not sustainable. The case law relied upon by the ld. DR are not applicable to the facts and circumstances of this case in the face of the decisions rendered by the Hon ble High Court in Manjunatha Cotton and Ginning Factory Ors. 2013 (7) TMI 620 - KARNATAKA HIGH COURT affirmed by the Hon ble Apex Court. On merits even when we examine the copy of return along with computation of income receipt and capital account and balance sheet it contains the entire detail as to the amount held to be unexplained cash deposit in the bank by the assessee and in these circumstances it does not amount to concealing the particulars of income or furnishing of inaccurate particulars of income during assessment proceedings. Moreover entry for the advance received by the assessee in his bank passbook cannot be termed as books of account so as to attract the provisions contained u/s 68 of the Act. Hon ble Supreme Court in a case cited as CIT vs. Reliance Petro Products Pvt. Ltd. 2010 (3) TMI 80 - SUPREME COURT decided the identical issue in favour of the assessee.

Summary

Issues Involved:
1. Sustaining the levy of penalty under Section 271(1)(c) of the Income-tax Act.
2. Denial of reasonable opportunity to the assessee.
3. Powers and duties of the Commissioner of Income Tax (Appeals).
4. Time gap between the execution of the agreement and the investigation.
5. Requirement for extra evidence in penalty proceedings.
6. Consideration of legal precedents.
7. Specificity of the charge against the assessee.
8. Grounds for initiation of penalty under Section 271(1)(c).
9. Legality and arbitrariness of the Commissioner of Income Tax (Appeals) order.

Detailed Analysis:

1. Sustaining the Levy of Penalty under Section 271(1)(c):
The main issue was whether the assessee concealed particulars of income or furnished inaccurate particulars of income. The penalty of ?7,72,000 was imposed based on an addition of ?15,00,000 as unexplained cash credit under Section 68. The Tribunal noted that penalty cannot be imposed solely because the addition was confirmed; the Assessing Officer (AO) must prove concealment or furnishing of inaccurate particulars.

2. Denial of Reasonable Opportunity:
The assessee argued that the AO did not provide a reasonable opportunity to present his case before levying the penalty. It was contended that only one notice was issued, and the Commissioner of Income Tax (Appeals) erred in disallowing the application under Rule 46A based on this ground.

3. Powers and Duties of the Commissioner of Income Tax (Appeals):
The assessee argued that the Commissioner of Income Tax (Appeals) has coextensive powers with the AO and should have ensured a fair opportunity for the assessee to present evidence. The Commissioner failed in his duty by rejecting the application under Rule 46A and not considering the material facts.

4. Time Gap Between Agreement Execution and Investigation:
The assessee pointed out that the agreement was executed in 2000, but the AO initiated the investigation in 2004. The assessee cited legal precedents to argue that such a delay should have been considered.

5. Requirement for Extra Evidence in Penalty Proceedings:
The assessee contended that penalty proceedings require additional evidence beyond what is needed for quantum assessment. The Commissioner failed to appreciate this requirement, especially since the assessee had filed the 'agreement to sell' with the return of income.

6. Consideration of Legal Precedents:
The assessee argued that the Commissioner overlooked relevant legal precedents, such as CIT Vs Value Capital Services P. Ltd. and CIT Vs Steller Investments Ltd., which were cited to argue that there was no evidence to prove that the assessee gave cash to purchase the said entry.

7. Specificity of the Charge Against the Assessee:
The Tribunal noted that the notice issued under Section 274 was not specific about whether the charge was for concealment of income or furnishing inaccurate particulars. The Karnataka High Court in CIT vs. Manjunatha Cotton and Ginning Factory & Ors. held that such ambiguity in the notice invalidates the penalty proceedings.

8. Grounds for Initiation of Penalty under Section 271(1)(c):
The Tribunal observed that the AO must clearly state the grounds for initiating penalty proceedings. In this case, the notice was ambiguous, marking both concealment and furnishing inaccurate particulars, which is insufficient for a valid penalty.

9. Legality and Arbitrariness of the Commissioner of Income Tax (Appeals) Order:
The Tribunal found the order of the Commissioner of Income Tax (Appeals) to be arbitrary and not in accordance with the law. The Tribunal emphasized that penalty proceedings are distinct from assessment proceedings and require clear and specific charges.

Conclusion:
The Tribunal concluded that the penalty under Section 271(1)(c) was not sustainable due to the lack of specific charges and the failure to provide a reasonable opportunity to the assessee. The Tribunal allowed the appeal and ordered the deletion of the penalty of ?7,72,000. The decision was pronounced on October 3, 2018.