2018 (4) TMI 867 - AT - Income Tax

Penalty u/s 271(1)(c) - not specifically proving the charge as to whether the assessee has concealed income or furnished inaccurate particulars of income - Income disclosed by the assessee during the search and seizure action and subsequently offered to tax in the return filed u/s 153A - Held that - There is no dispute that in case the Assessing Officer has initiative the penalty proceeding by issuing a notice u/s 274 without specifying the charge in the default committed by the assessee against which the AO intended to impose the penalty. The said, notice u/s 274 of the Act is in violation of the mandatory condition of making the assessee known about the grounds on which the AO propose to levy the penalty and consequently denying the assessee proper opportunity to contest and meet the case of the AO. In case where the assessee has disclosed unaccounted income during the course of search and seizure action and consequently surrendered the said income in the return filed u/s 153A then the question of making the assessee known about the charge does not arise. In the case in hand apart from the income surrendered by the assessee as disclosed in the statement u/s 132(4) of the Act the AO has also made various additions while framing the assessment u/s 153A of the Act. Therefore, this is not a case of simple levy of penalty against undisclosed income which was disclosed by the assessee and consequently offered to tax while filing the return u/s 153A of the Act but various complex facts and circumstances are involved in this case which requires to be considered while deciding the legal issue raised by the assessee against the validity of the notice u/s 274 of the Act. Relevant facts in respect of each and every addition and income offered by the assessee are requires to be considered in the light of the various decisions and precedents as relied upon by both the parties. Accordingly, in view of the above fact and circumstances, that the additional ground raised by the assessee is legal in nature and goes to the root of the matter the same is set aside to the record of the ld. CIT(A) for adjudication - Decided in favour of assessee for statistical purposes.

Summary

Issues Involved:
Admission of additional ground challenging the validity of notice issued u/s 274 r.w.s. 271(1)(c) for not specifying the default; Legality of notice issued u/s 274 r.w.s. 271(1)(c) for concealment of income or furnishing inaccurate particulars of income.

Issue 1: Admission of Additional Ground:
The assessee challenged the validity of the notice issued u/s 274 r.w.s. 271(1)(c) for not specifying the default, whether concealment of income or furnishing inaccurate particulars of income. The AR argued that the additional ground was legal and already on record, requiring no new investigation. Citing the NTPC vs. CIT case, the Tribunal admitted the additional ground for adjudication on merits.

Issue 2: Legality of Notice Issued u/s 274 r.w.s. 271(1)(c):
The AR contended that since the notice did not specify the charge for penalty, it was illegal. Relying on the Karnataka High Court decision in CIT vs. Manjunatha Cotton and Ginning Factory, the AR argued that the AO's order under 271(1)(c) was not sustainable. Further, referencing the CIT vs. SSA's Emerald Meadows case, the AR claimed the notice was bad in law, making the penalty invalid. Several other cases were cited to support this argument.

Counter-Argument and Decision:
The DR opposed the admission of the additional ground, stating the nature of default was known to the assessee. The AO had recorded satisfaction for penalty initiation, and the assessee had not raised these issues before. The Tribunal noted that the notice's lack of specification violated mandatory conditions, denying the assessee a fair opportunity. However, in cases where unaccounted income was disclosed during search and seizure, as in this case, the charge specification was deemed unnecessary. Due to the complexity of the case involving various additions and disclosed income, the Tribunal set aside the additional ground for the CIT(A) to consider after examining all relevant facts and records. The appeal was allowed for statistical purposes, with the other grounds left open for further consideration.

This comprehensive analysis highlights the key legal arguments, case references, and the Tribunal's decision on the issues raised in the judgment.