2018 (4) TMI 1358 - AT - Income Tax

Penalty u/s 271(1)(c) - assessee surrendered the amount before the settlement commission u/s 245D - Held that - In the case in hand all the facts were already on record of assessment proceedings however, the same were not available before us particularly the statement recorded u/s 132(4), the seized material as well as alleged surrendered made by the assessee before the settlement commission and consequent surrender in the assessment proceedings. Since, these facts are relevant for deciding the issue whether the penalty has been levied by the AO on the sum which was surrendered by the assessee or against the addition made by the AO. The assessee has raised this issue first time before this Tribunal and in the absence of the said issue raised before the authorities below the relevant facts though available on the assessment record were not referred in the impugned orders by the authorities below. Thus we set aside these appeals to the record of the ld. CIT(A) for considering the additional ground raised by the assessee which has been admitted by us for adjudication on merits - Decided in favour of assessee for statistical purposes.

Issues:
- Appeal against penalty imposed under section 271(1)(c) for assessment years 2002-03 to 2005-06.
- Additional ground challenging the validity of notice issued under section 274 r.w.s. 271(1)(c) for concealment of income or furnishing inaccurate particulars.
- Admissibility of additional ground raised by the assessee.
- Merits of the additional ground challenging the legality of the notice.
- Dispute regarding the charge for penalty initiation - concealment of income or furnishing inaccurate particulars.
- Consideration of surrendered income by the assessee and its impact on penalty levy.
- Lack of specific charge mentioned in the notice for penalty initiation.
- Decision to set aside the appeals for further consideration based on admitted additional ground.

Analysis:
The appeals were directed against the penalty orders for the assessment years 2002-03 to 2005-06. The assessee contested the penalty under section 271(1)(c), raising common grounds across the appeals. An additional ground challenged the validity of the notice issued under section 274 r.w.s. 271(1)(c) for not specifying the charge of penalty initiation - concealment of income or furnishing inaccurate particulars. The assessee argued that this legal issue was fundamental and required no further investigation of facts, citing legal precedents supporting the admission of such grounds.

The Revenue objected to the admission of the additional ground, stating that the assessee had sufficient opportunities to raise objections earlier. However, the Tribunal found the additional ground to be legal in nature, addressing a crucial aspect of the penalty notice. Noting that the Revenue did not dispute the defect in the notice, the Tribunal admitted the additional ground for consideration on its merits.

Regarding the merits of the additional ground, the assessee argued that the notice's lack of specificity regarding the penalty charge rendered it illegal. The assessee relied on legal judgments to support this contention. On the other hand, the Revenue highlighted the surrender of undisclosed income by the assessee, contending that the penalty was justified as the assessee had admitted to the undisclosed amount.

The Tribunal acknowledged the importance of specifying the charge for penalty initiation and the impact of surrendered income on penalty levy. However, due to the lack of certain crucial facts before the Tribunal and the late submission of the additional ground, it decided to remand the appeals to the CIT(A) for further consideration. The Tribunal emphasized the need to review the admitted additional ground in light of relevant facts and legal precedents, keeping other grounds open for future examination.

In conclusion, the appeals were allowed for statistical purposes, and the Tribunal ordered a reconsideration of the additional ground challenging the legality of the penalty notice, ensuring a comprehensive review of the relevant facts and legal aspects involved in the case.

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