2017 (5) TMI 904 - AT - Income Tax

Penalty u/s 271(1)(c) - validity of notice u/s 274 - non application of mind - reasons to believe - due application of mind by the Assessing Officer - Held that - A copy of the said notice has been placed on record and the learned representative canvassed that the same has been issued by the Assessing Officer in a standard proforma, without striking out the irrelevant clause. The notice refers to both the limbs of Sec. 271(1)(c) of the Act, namely concealment of the particulars of income as well as furnishing of inaccurate particulars of income. Quite clearly, non-striking-off of the irrelevant limb in the said notice does not convey to the assessee as to which of the two charges it has to respond. The aforesaid infirmity in the notice has been sought to be demonstrated as a reflection of non-application of mind by the Assessing Officer The notice issued by the Assessing Officer u/s 274 r.w.s. 271(1)(c) of the Act dated 10.12.2010 is untenable as it suffers from the vice of non-application of mind having regard to the ratio of the judgment of the Hon ble Supreme Court in the case of Dilip N. Shroff (2007 (5) TMI 198 - SUPREME Court ) as well as the judgment of the Hon ble Bombay High Court in the case of Shri Samson Perinchery (2013 (11) TMI 369 - ITAT MUMBAI ). Thus, on this count itself the penalty imposed u/s 271(1)(c) of the Act is liable to be deleted. - Decided in favour of assessee.

Summary

Issues Involved:
1. Imposition of penalty under Section 271(1)(c) of the Income Tax Act, 1961.
2. Determination of Long Term Capital Loss on redemption of preference shares.
3. Non-application of mind by the Assessing Officer in issuing penalty notice under Section 274 r.w.s. 271(1)(c).

Issue-wise Detailed Analysis:

1. Imposition of penalty under Section 271(1)(c) of the Income Tax Act, 1961:
The primary grievance of the assessee was the imposition of penalty under Section 271(1)(c) of the Act. The Assessing Officer had levied a penalty amounting to ?5,45,80,203/- for furnishing inaccurate particulars of income. The CIT(A) sustained the penalty but provided partial relief by adjusting the computation, scaling down the penalty to ?4,12,26,247/-. The Tribunal noted that the penalty was imposed because the Assessing Officer found the transaction of redemption of preference shares to be bogus and disallowed the entire Long Term Capital Loss claimed by the assessee.

2. Determination of Long Term Capital Loss on redemption of preference shares:
The assessee reported a Long Term Capital Loss of ?18,19,34,011/- due to the redemption of preference shares of Shri Santram Finance Ltd. The Assessing Officer disallowed this loss, treating the transaction as a sham. The assessee had invested ?23,50,00,000/- in preference shares during the financial years 1997-98 and 1998-99, which were redeemed at a reduced price. The assessee contended that the loss was genuine and supported by financial statements of the investee company. However, the Assessing Officer rejected the explanation, citing the involvement of a common director in both companies, lack of valuation basis, and absence of bank account details for the transaction.

3. Non-application of mind by the Assessing Officer in issuing penalty notice under Section 274 r.w.s. 271(1)(c):
The Tribunal scrutinized the penalty notice issued under Section 274 r.w.s. 271(1)(c) and found that it was issued in a standard proforma without striking out the irrelevant clause, thus failing to specify whether the penalty was for concealment of income or furnishing inaccurate particulars. This ambiguity indicated non-application of mind by the Assessing Officer. The Tribunal referenced the Supreme Court's judgment in Dilip N. Shroff, which emphasized the necessity for clarity in the charge against the assessee to ensure compliance with principles of natural justice. The Tribunal also noted similar judgments from the Karnataka High Court and the Bombay High Court, supporting the view that such notices are invalid if they fail to specify the exact charge.

Conclusion:
The Tribunal concluded that the penalty notice suffered from non-application of mind, as it did not clearly communicate the charge to the assessee. Consequently, the penalty imposed under Section 271(1)(c) was deemed untenable and was deleted. The Tribunal did not address other arguments raised by the appellant, as the penalty was deleted on the preliminary point of improper notice issuance. The appeal filed by the assessee was allowed.