2018 (6) TMI 1116 - AT - Income Tax

Penalty u/s 271(1)(c) - revision order passed under section 263 - disallowance made in the original assessment order passed under section 143(3) - status of the original assessment order on the date penalty order passed - Held that - On the date the penalty order under section 271(1)(c) of the Act was passed, the original assessment order dated 7th December 2011 was not in existence as it was set aside / revised by the learned Commissioner under section 263 of the Act vide order dated 14th March 2014. That being the case, the Assessing Officer could not have passed the impugned penalty order under section 271(1)(c) of the Act in the absence of the original assessment order passed under section 143(3) of the Act. Subsequent setting aside of the revision order passed under section 263 of the Act by the Tribunal vide order dated 4th November 2015 is not material considering the fact that it has to be seen what is the status of the original assessment order on the date penalty order was passed by the Assessing Officer. Since, on the date of penalty order, the original assessment order under section 143(3) of the Act was not in existence, the impugned penalty order is also invalid. For this reason, the penalty order passed under section 271(1)(c) of the Act is legally unsustainable. Invalid notice - Assessing Officer has imposed penalty under section 271(1)(c) of the Act alleging furnishing of inaccurate particulars of income, however, in the show cause notice dated 7th December 2011 issued under section 274 r/w 271(1)(c) of the Act the Assessing Officer has not struck off the inappropriate words to indicated the specific limb of section 271(1)(c) of the Act violated by the assessee to attract imposition of penalty. That being the case, impugned penalty order passed under section 271(1)(c) of the Act cannot be sustained - Decided in favour of assessee.

Summary

Issues:
- Penalty imposed under section 271(1)(c) of the Income Tax Act, 1961 for assessment year 2009-10.
- Validity of penalty order due to the revision of the original assessment order.
- Specific limb of penalty provision not indicated in the show cause notice.
- Justification for imposition of penalty under section 271(1)(c) of the Act.
- Merits of the issue regarding the disallowed expenditures.

Analysis:

Issue 1: Penalty imposed under section 271(1)(c) of the Income Tax Act
- The appeal was against the penalty imposed under section 271(1)(c) for the assessment year 2009-10.
- The Assessing Officer disallowed part of the expenditure claimed by the assessee under various heads, resulting in the imposition of the penalty.

Issue 2: Validity of penalty order due to the revision of the original assessment order
- The Assessing Officer imposed the penalty based on the original assessment order, which was later revised by the Commissioner under section 263 of the Act.
- The penalty order was passed after the original assessment order was revised, rendering it invalid as the original order was not in existence at the time of penalty imposition.

Issue 3: Specific limb of penalty provision not indicated in the show cause notice
- The show cause notice issued by the Assessing Officer did not specify the specific limb of section 271(1)(c) violated by the assessee.
- Failure to indicate the specific provision violated in the notice rendered the penalty order invalid, as per judicial precedents.

Issue 4: Justification for imposition of penalty under section 271(1)(c) of the Act
- The penalty was imposed alleging furnishing of inaccurate particulars of income by the assessee.
- The Assessing Officer did not provide evidence or findings to support the claim that inaccurate particulars were furnished, making the penalty imposition unjustified.

Issue 5: Merits of the issue regarding the disallowed expenditures
- The Assessing Officer disallowed a portion of the claimed expenditures, but there was no allegation of them being bogus.
- The disallowance was based on failure to justify the necessity of the expenditures for the business, not on the grounds of being false or inaccurate.
- The Commissioner did not provide factual findings on whether inaccurate particulars were furnished, leading to the conclusion that the penalty was not justified.

Conclusion:
- The Tribunal found the penalty imposed under section 271(1)(c) unjustified and deleted it.
- The appeal by the assessee against the penalty was allowed, emphasizing the lack of justification for the penalty and the invalidity of the penalty order due to the absence of the original assessment order at the time of imposition.