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2017 (10) TMI 44 - AT - Income TaxPenalty levied u/s 271(1)(c) - non mentioning of specific charge - Concealment of particular of income OR furnishing of inaccurate particulars of income Held that - AO is satisfied that the assessee has concealed the particulars of income or furnished inaccurate particulars of income. The concealment of particulars of income and filing inaccurate particulars referred in section 271(1)(c) of the Act denote different connotations. This distinction was discussed by Hon ble Apex Court in case of Dilip N. Shroff (2007 (5) TMI 198 - SUPREME Court) and in case and in case of T. Ashok Pai (2007 (5) TMI 199 - SUPREME Court) werein held that, if two expression i.e. concealment of particular of income and furnishing of inaccurate particulars of income have to different connotations, it is imperative for the assessee, that assessee be made aware of as to which of one action is being initiated against him for levy of penalty u/s. 271(1)(c) of the Act. The assessee has placed on record copy of notice u/s 274 r.w.s. 271(1)(c) of the Act dated 26.11.2007. The notice was issued by AO on a standard format, without striking out irrelevant clause therein. The said notice referred to both limbs of section 271(1)(c) of the Act. Thus, there was no clarity in mind of AO as to which charge is being proposed/initiated against the assessee. This infirmity in the notice was sought to be demonstrated as reflection of non-application of mind by ld. AR of the assessee - Decided in favour of assessee.
Issues Involved:
1. Validity of the penalty notice under Section 274 read with Section 271(1)(c) of the Income Tax Act. 2. Deductibility of Security, Brokerage, and other charges under the head "Income from House Property." 3. Classification of rental income under "Business Income" instead of "Income from House Property." 4. Impact of mere change of head of income on the imposition of penalty. 5. Disclosure of particulars in the return of income and its effect on the penalty. Issue-wise Detailed Analysis: 1. Validity of the Penalty Notice: The primary issue was whether the penalty notice issued under Section 274 read with Section 271(1)(c) was valid. The assessee argued that the notice did not specify whether the penalty was for "concealment of income" or "furnishing inaccurate particulars of income," leading to ambiguity and non-application of mind by the Assessing Officer (AO). The Tribunal noted that the notice was issued in a standard format without striking out the irrelevant clause, which referred to both limbs of Section 271(1)(c). This lack of specificity was deemed a reflection of non-application of mind, as supported by various judicial precedents including the Supreme Court's decision in Dilip N. Shroff and the Bombay High Court's decision in Shri Samson Perinchery. Consequently, the Tribunal found the notice invalid and set aside the penalty on this ground. 2. Deductibility of Security, Brokerage, and Other Charges: The assessee contended that Security Expenses, Brokerage, and other charges should be deductible while computing the Annual Letting Value (ALV) under "Income from House Property." The Tribunal did not delve deeply into this issue as the primary ground of invalid notice was upheld, rendering this argument academic. However, the assessee cited several decisions supporting the deductibility of such expenses, including Lek Raj Channa vs. ITO and Govind S. Singhania vs. ITO. 3. Classification of Rental Income: The assessee argued that the rental income should be classified under "Business Income" instead of "Income from House Property," as letting out properties was one of its sole objects. The Tribunal did not address this issue in detail due to the acceptance of the primary ground of invalid notice. The assessee relied on the Supreme Court's decision in Chennai Properties and Investments Ltd. vs. CIT to support this argument. 4. Impact of Mere Change of Head of Income: The assessee contended that a mere change in the head of income should not attract a penalty. The Tribunal did not need to decide on this issue separately as the penalty was already set aside on the ground of invalid notice. The assessee cited decisions such as CIT vs. Bennet Coleman & Co. Ltd. and ITO vs. Balkishen R. Mehra to support this contention. 5. Disclosure of Particulars in the Return of Income: The assessee argued that all particulars were disclosed in the return of income, and the disallowance of certain deductions did not amount to furnishing inaccurate particulars or concealing income. The Tribunal did not address this issue separately due to the acceptance of the primary ground of invalid notice. The assessee relied on the Supreme Court's decision in CIT vs. Reliance Petroproducts Pvt. Ltd. to support this argument. Conclusion: The Tribunal allowed the appeals for both assessment years, primarily on the ground that the penalty notices were invalid due to non-application of mind by the AO. The Tribunal set aside the penalty orders without delving into the other issues raised by the assessee, as the primary ground was sufficient to decide the appeals. The principle of consistency was followed for the subsequent assessment year, resulting in the allowance of both appeals.
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