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2018 (5) TMI 1577 - AT - Income TaxPenalty u/s 271(1)(c) - non specification of charge - Held that - As perused the assessment orders for both the years wherein AO has also not levied any specific charge on the additions made but has simply stated that he is satisfied that the penalty proceedings under section 271(1)(c) should be initiated against the assessee company. Therefore we find that there is no specific charge levied by the assessing officer in the assessment orders as well as in the penalty notices but has levied the penalty on the assessee holding that assessee has furnished inaccurate particulars of his income. - Decided in favour of assessee.
Issues Involved:
1. Whether the penalty under section 271(1)(c) of the Income Tax Act was justified. 2. Whether the additions made by the Assessing Officer were based on incriminating material. 3. Whether the estimation of gross profit and initial investment was correct. 4. Whether the penalty notice issued lacked a specific charge. 5. Whether the admission of the appeal by the High Court indicated that the issue was debatable. Issue-wise Detailed Analysis: 1. Justification of Penalty under Section 271(1)(c): The penalty was levied by the Assistant Commissioner of Income Tax, and confirmed by the Commissioner of Income Tax (Appeals), for both Assessment Years 2004-05 and 2005-06. The primary contention was that the assessee did not furnish inaccurate particulars of income nor concealed income. The Tribunal noted that the Hon'ble High Court had admitted the appeals of the assessee, indicating that the issues were debatable. The Tribunal referenced the Delhi High Court's decisions in CIT vs. Liquid Investment Limited and CIT vs. Thomson Press India Ltd, which held that the admission of an appeal on substantial questions of law indicates the issue is debatable, thus penalty under section 271(1)(c) is not warranted. 2. Additions Based on Incriminating Material: The Assessing Officer made additions based on the suppression of production of finished goods, discrepancies in the number of workers, and unrecorded sales. The Tribunal noted that the High Court admitted the appeal on whether the additions were based on any incriminating material, thus making the issue debatable and not justifying the penalty. 3. Estimation of Gross Profit and Initial Investment: For Assessment Year 2004-05, the Assessing Officer estimated the turnover at ?20.59 crores with a gross profit of ?6.27 crores and an initial investment of ?2.02 crores, leading to a total addition of ?8.29 crores. For Assessment Year 2005-06, the gross profit was estimated at ?10.97 crores. The Tribunal noted that the High Court admitted the appeal on the correctness of these estimations, indicating the issue was debatable. 4. Specific Charge in Penalty Notice: The Tribunal scrutinized the penalty notices and found that the Assessing Officer did not strike off one of the two charges (furnishing inaccurate particulars or concealment of income). Citing the Karnataka High Court's decision in CIT vs. SSA Emerald Meadows and the Bombay High Court's decision in CIT vs. Samson Perichery, the Tribunal held that the absence of a specific charge in the penalty notice invalidates the penalty. 5. Admission of Appeal by High Court: The Tribunal emphasized that the High Court's admission of the appeals on substantial questions of law indicates that the issues are debatable. The Tribunal referenced multiple judgments, including CIT vs. Advaita Estate Development Pvt. Ltd and CIT vs. Liquid Investment Limited, which support the view that the admission of an appeal on substantial questions of law precludes the imposition of penalty under section 271(1)(c). Conclusion: The Tribunal concluded that the penalty under section 271(1)(c) was not sustainable for both assessment years due to the debatable nature of the issues, the lack of a specific charge in the penalty notices, and the High Court's admission of the appeals. Consequently, the Tribunal directed the Assessing Officer to delete the penalties and reversed the findings of the Commissioner of Income Tax (Appeals). The appeals of the assessee for both years were allowed.
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