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2017 (9) TMI 1579 - AT - Income TaxRevision u/s 263 - penalty proceedings u/s. 271(1)(c) - Held that - We find similar issue has come up in the case of Dharmanandan Diamonds Pvt. Ltd v. ACIT 2017 (3) TMI 1567 - ITAT MUMBAI and CIT v. Paramanand M Patel 2005 (7) TMI 72 - GUJARAT High Court and in the case of CIT v. Subhash Kumar Jain 2010 (9) TMI 772 - Punjab and Haryana High Court set aside the order of the Learned Commissioner of Income Tax passed u/s 263 of the Act in directing the Assessing Officer to initiate penalty proceedings u/s. 271(1)(c) of the Act. Where the Commissioner of Income Tax finds that the Assessing Officer had not initiated penalty proceedings u/s. 271(1)(c) in the Assessment Order he cannot direct the Assessing Officer to initiate penalty proceedings u/s. 271(1)(c) of the Act in exercising of revisional power u/s 263 of the Act. - Decided in favour of assessee.
Issues Involved:
1. Principles of natural justice violated. 2. Holding that the order u/s. 143(3) r.w.s. 147 is erroneous and prejudicial to the interest of the revenue. Issue-Wise Detailed Analysis: 1. Principles of Natural Justice Violated: The assessee contended that the Learned Commissioner of Income Tax (CIT) passed the order u/s. 263 without serving a show cause notice, thereby violating the principles of natural justice. The CIT's order was challenged on the grounds that it was bad in law due to the lack of notice. However, the Department argued that the notice was indeed served via speed post, and acknowledgment proof was provided. Consequently, the tribunal dismissed this ground of appeal, indicating that the service of notice was adequately proven by the Department. 2. Holding that the Order u/s. 143(3) r.w.s. 147 is Erroneous and Prejudicial to the Interest of the Revenue: The core issue revolved around whether the CIT had the authority under section 263 to direct the Assessing Officer (AO) to initiate penalty proceedings u/s. 271(1)(c) of the Act. The CIT held that the AO's failure to initiate such penalty proceedings rendered the assessment orders erroneous and prejudicial to the interest of the revenue. The assessee argued that the CIT could not direct the AO to initiate penalty proceedings under section 271(1)(c), relying on the precedent set by the Hon'ble High Court of Punjab and Haryana in CIT v. Rakesh Nain Trivedi, which concluded that the CIT cannot exercise revisional power u/s. 263 to direct such initiation. The Department, however, supported the CIT's stance, referencing the Hon'ble Allahabad High Court's decision in CIT v. Surendra Prasad Agarwal, which upheld the CIT's authority to revise an assessment order due to the AO's omission to initiate penalty proceedings. The tribunal noted the conflicting judicial views but emphasized the principle that when two views are possible, the one favoring the assessee should be adopted, as established by the Hon'ble Supreme Court in CIT v. Vegetable Products. The tribunal also referred to similar cases, such as Dharmanandan Diamonds Pvt. Ltd v. ACIT and CIT v. Subhash Kumar Jain, where it was held that the CIT does not have the power to direct the AO to initiate penalty proceedings u/s. 271(1)(c) under section 263. The tribunal concluded that the CIT's orders for the assessment years in question were not justified and set them aside, thereby ruling in favor of the assessee. Conclusion: The appeals were partly allowed, with the tribunal setting aside the CIT's orders passed u/s. 263 for the assessment years 2010-11, 2011-12, and 2012-13. The principle upheld was that the CIT cannot direct the initiation of penalty proceedings u/s. 271(1)(c) under the revisional powers of section 263.
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