2017 (12) TMI 1051 - AT - Income Tax

Penalty u/s 271(1)(c) - exemption under section 10(23C)(vi) denied - Held that - We find that the Assessing Officer while completing the assessment has not recorded proper satisfaction as to which limb of section 271(1)(c) of the Act has not been fulfilled by the assessee and consequently no proper show cause notice was given to the assessee before initiating the penalty proceedings under section 271(1)(c) of the Act. Even otherwise the said satisfaction was recorded in respect of the non denial of exemption under section 10(23C)(vi) of the Act and not in respect of other additions made by the Assessing Officer. Further the Assessing Officer while levying the penalty under section 271(1)(c) of the Act in the order imposing the penalty for concealment has held the assessee to have concealed its income or furnished inaccurate particulars of income. In the absence of the details being given by the trust on account of each and every expenditure booked 50% of such expenditure was disallowed being his personal expenditure. Vis-a-vis the said disallowance we hold that same has been upheld in the hands of the assessee for want of proof and not for violation of any of the provisions of the Act. In view thereof we find no merit in the levy of penalty under section 271(1)(c) of the Act on such partial disallowance of expenditure on maintenance of car and credit card expenses of Mr. B.E. Avhad. In assessment year 2006-07 disallowance on depreciation of car and Honorarium paid i.e. facilities to Mr. B.E. Avhad have been upheld to the extent of 50%. We hold that the assessee is not liable to levy of penalty on partial disallowance of facilities provided to Mr. B.E. Avhad. The assessee is liable to levy of penalty under section 271(1)(c) of the Act on the expenditure incurred on Foreign Tour of the trustees scholarship given to the relatives of the trustees and also on the interest on loan given to relatives of the trustees disallowance of which under section 13(1)(c) of the Act has been upheld in the hands of the assessee. Hence grounds of appeal raised by the assessee are partly allowed.

Issues Involved:
1. Levy of penalty under section 271(1)(c) of the Income-tax Act, 1961.
2. Validity of reopening under section 148.
3. Denial of exemption under sections 11/10(23C)(vi).
4. Violation of provisions of Section 13(1)(c).
5. Concealment of income and furnishing inaccurate particulars of income.
6. Admissibility of additional grounds of appeal.

Issue-wise Detailed Analysis:

1. Levy of Penalty under Section 271(1)(c) of the Income-tax Act, 1961:
The appeals in ITA Nos. 968 to 971 & 973 to 974/PUN/2015 and ITA Nos. 2018 to 2021 & 2023 to 2024/PUN/2012 relate to the levy of penalty under section 271(1)(c). The assessee contended that the Assessing Officer (AO) did not specify whether the penalty was for concealment of income or for furnishing inaccurate particulars of income. The Tribunal noted that the AO must record a specific satisfaction regarding which limb of section 271(1)(c) was not fulfilled. The Tribunal referenced the Hon'ble Bombay High Court in CIT Vs. Samson Perinchery, emphasizing that the penalty order must be based on the specific ground for which the penalty proceedings were initiated. The Tribunal found the penalty order invalid due to the AO's failure to specify the exact charge and directed the deletion of the penalty for the relevant assessment years.

2. Validity of Reopening under Section 148:
The assessee argued that the reopening under section 148 was bad in law, making the reassessment and penalty orders null and void. However, this issue became academic as the Tribunal primarily focused on the validity of the penalty proceedings under section 271(1)(c).

3. Denial of Exemption under Sections 11/10(23C)(vi):
The Tribunal noted that the AO denied the exemption claimed under section 10(23C)(vi) and section 11. The Tribunal had previously allowed the exemption under section 11 except for certain violations under section 13(1)(c). The Tribunal's earlier orders for assessment years 1999-2000 to 2004-05 and 2005-06 to 2007-08 confirmed this position.

4. Violation of Provisions of Section 13(1)(c):
The Tribunal upheld the denial of exemption under section 11 due to violations of section 13(1)(c), including facilities provided to trustees, foreign tour expenses, and concessional education to trustees' relatives. The Tribunal noted that these expenditures were not for the objects of the trust and thus were disallowed.

5. Concealment of Income and Furnishing Inaccurate Particulars of Income:
The Tribunal emphasized that the AO must clearly state whether the penalty was for concealment of income or furnishing inaccurate particulars. The AO's failure to strike out the irrelevant limb in the notice under section 271(1)(c) and the ambiguous penalty order led to the conclusion that the penalty proceedings were invalid.

6. Admissibility of Additional Grounds of Appeal:
The Tribunal admitted the additional ground of appeal raised by the assessee, which challenged the penalty order's validity due to the AO's failure to specify the exact charge. The Tribunal found this ground to be purely legal and did not require further investigation of facts.

Conclusion:
The Tribunal held that the penalty orders under section 271(1)(c) were invalid due to the AO's failure to specify whether the penalty was for concealment of income or for furnishing inaccurate particulars. The Tribunal directed the deletion of the penalties for the relevant assessment years. The Tribunal also noted that the reassessment orders and the denial of exemptions were upheld except for specific violations under section 13(1)(c). The appeals were partly allowed, and the penalty proceedings were declared invalid and bad in law.

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