2017 (1) TMI 41 - AT - Income Tax

Penalty proceedings u/s 271 (1) (c) - assessment order abated - Held that - As in the notice dated 12-03-2012, the learned AO has specifically mentioned initiation of penalty proceedings in terms of the order dated 22-12-2009 and, not order dated 30-12-2008, and secondly, in the wake of the proceedings u/s 153A/153C the said assessment order automatically stands abated in terms of second proviso to Section 153A. Such an abated assessment cannot be revived for the purpose of levying penalty u/s 271 (1) (c). Thus, such an observation and finding of the learned CIT (A) cannot be upheld. Once, the original assessment stands abated, then consequently, no proceedings u/s 271 (1) (c) Act can be initiated or penalty can be levied in terms of the said assessment order. So far as levy of penalty u/s 271 (1) (c) in respect of the assessment order dated 22-12-2009 is concerned, the same again is unwarranted, because there is no initiation of penalty proceedings u/s 271 (1) (c) in the abetment order and nothing is discernible from the said assessment order that the AO had some kind of satisfaction for initiating proceedings or levying penalty u/s 271 (1) (c). - Decided in favour of assessee

Summary

Issues Involved:
1. Levy of penalty under Section 271(1)(c) of the Income Tax Act, 1961.
2. Validity of penalty proceedings initiated with reference to different assessment orders.
3. Applicability of Section 292B of the Income Tax Act concerning technical defects in notices.

Issue-wise Detailed Analysis:

1. Levy of Penalty under Section 271(1)(c) of the Income Tax Act, 1961:
The assessee contested the penalty of ?6,73,121/- levied due to an adhoc addition of ?19,99,776/- in the original assessment under Section 143(3). The penalty was initially issued based on the assessment order dated 30-12-2008. However, the penalty proceedings were later linked to the assessment order dated 22-12-2009, passed under Section 153A read with Section 143(3). The Tribunal noted that the penalty was not initiated in the assessment order dated 22-12-2009, and thus, the penalty levied was unsustainable in law. The Tribunal emphasized that the initiation of penalty proceedings must be evident from the assessment order itself.

2. Validity of Penalty Proceedings Initiated with Reference to Different Assessment Orders:
The Tribunal examined the sequence of events, noting that the original assessment under Section 143(3) was abated due to the search and seizure action conducted on 13-03-2008, which led to proceedings under Section 153A/153C. The assessment order dated 22-12-2009, passed under Section 153A read with Section 143(3), did not initiate any penalty proceedings under Section 271(1)(c). The Tribunal held that once the original assessment stands abated, no penalty proceedings can be initiated based on it. The Tribunal cited multiple judicial precedents, including CIT v. Lotus Constructions and Chennakesava Pharmaceuticals v. CIT, to support the requirement of a clear direction for penalty initiation in the assessment order.

3. Applicability of Section 292B of the Income Tax Act Concerning Technical Defects in Notices:
The Tribunal addressed the argument presented by the learned Departmental Representative (DR) that the penalty notice's reference to the order dated 22-12-2009 was a technical defect protected under Section 292B. The learned Commissioner of Income Tax (Appeals) [CIT(A)] had upheld the penalty by invoking Section 292B, stating that the defect was technical and did not prejudice the assessee. However, the Tribunal disagreed, emphasizing that the original assessment order dated 30-12-2008 had abated, and thus, the penalty proceedings could not be revived based on it. The Tribunal concluded that the learned CIT(A)'s reliance on Section 292B was misplaced, as the initiation of penalty proceedings must be clear and unambiguous, which was not the case here.

Conclusion:
The Tribunal allowed the appeal of the assessee, quashing the penalty order on the grounds that the penalty proceedings were not validly initiated in the assessment order dated 22-12-2009, and the original assessment order dated 30-12-2008 had abated due to the search proceedings. The Tribunal's decision emphasized the necessity for clear and explicit initiation of penalty proceedings in the relevant assessment order, aligning with established judicial precedents. The appeal was allowed, and the penalty order was set aside.