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2017 (1) TMI 1193 - AT - Income TaxPenalty order u/s. 271(1)(c) - non mention of reasons - defective notice - Held that - Assessee has clearly explained before us that the assessee has admitted the undisclosed income suo moto during the course of search. In the case under consideration, the AO had made the addition based on the estimate and not based on the seized documents. When the addition is based on the estimate the penalty cannot be levied. In addition to this, the ld. AR for the assessee relied on the judgment of the jurisdictional ITAT in the case of Shri Suresh Karmakar Vs. DCIT 2017 (1) TMI 1163 - ITAT KOLKATA where he has pointed out that the AO did not tick the relevant para of the notice of the penalty u/s. 274 of the Act, therefore, the assessee did not know for which reason he is being penalized. Hence, following the decision of M/s MANJUNATHA COTTON AND GINNING FACTORY & OTHS. 2013 (7) TMI 620 - KARNATAKA HIGH COURT we are of the view that the penalty imposed by the AO and confirmed by the ld. CIT(A) needs to be deleted. Accordingly, we delete the penalty u/s. 271(1)(c) - Decided in favour of assessee
Issues Involved:
1. Validity of penalty imposed under Section 271(1)(c) of the Income Tax Act, 1961. 2. Applicability of Explanation 5A to Section 271(1)(c). 3. Distinction between "person" and "assessee" under the Income Tax Act. 4. Basis of addition (estimation vs. seized documents). 5. Procedural validity of the penalty notice under Section 274 of the Act. Detailed Analysis: 1. Validity of Penalty Imposed Under Section 271(1)(c): The primary issue revolves around the imposition of penalty under Section 271(1)(c) for alleged concealment of income. The Assessing Officer (AO) imposed the penalty based on the assessee's failure to file a return of income voluntarily before the search operation and subsequent estimation of income. The AO argued that the assessee did not maintain proper books of accounts and failed to disclose income during the search operation, justifying the penalty. 2. Applicability of Explanation 5A to Section 271(1)(c): Explanation 5A of Section 271(1)(c) was a critical factor in this case. According to this explanation, if a search is initiated after June 1, 2007, and the assessee is found to have undisclosed income, the assessee is deemed to have concealed income for penalty purposes, even if the income is declared in a return filed after the search. The CIT(A) confirmed the penalty, citing that the assessee did not file a return for the previous year before the search, thus falling within the ambit of Explanation 5A. 3. Distinction Between "Person" and "Assessee": The assessee argued that at the time of the search, they were not an "assessee" as defined under Section 2(7) of the Act, but merely a "person" as per Section 2(31). The assessee contended that since they were not a taxpayer at the time of the search, the provisions of Section 271(1)(c) should not apply. This distinction was pivotal in the assessee's defense against the penalty. 4. Basis of Addition (Estimation vs. Seized Documents): The assessee contended that the addition made by the AO was based on estimation rather than concrete evidence from seized documents. The Tribunal acknowledged that when additions are made on an estimated basis, penalties under Section 271(1)(c) are generally not warranted. The Tribunal noted that the AO's addition was not directly based on seized documents but on an estimation of income, which weakened the justification for the penalty. 5. Procedural Validity of the Penalty Notice Under Section 274: The procedural aspect of the penalty notice under Section 274 was also scrutinized. The assessee argued that the AO did not strike off the irrelevant portions of the penalty notice, leading to ambiguity about the exact nature of the alleged default (whether it was for "concealment of income" or "furnishing inaccurate particulars of income"). The Tribunal referred to the jurisdictional ITAT's decision in Subhaprasanna Bhattacharya Vs. ACIT and the Hon’ble Karnataka High Court's ruling in CIT Vs. Manjunatha Cotton & Ginning Factory, which held that such ambiguity invalidates the penalty notice. Conclusion: The Tribunal found merit in the assessee's arguments, particularly the procedural lapse in the penalty notice and the fact that the addition was based on estimation. The Tribunal ruled that the penalty under Section 271(1)(c) was not justified and ordered its deletion. The appeal filed by the assessee was allowed, and the penalty of ?4,35,357/- was deleted.
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