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2018 (8) TMI 1312 - AT - Income TaxLevy of penalty u/s 271(1)(c) - issue of notice issued u/s 274 r.w.s. 271(1)(c) without striking off irrelevant portion - estimation of income - genuineness of expenditure claimed - Held that - Even in the assessment order, the AO has initiated penalty proceedings for concealment of income and for furnishing of inaccurate particulars of income. This lapse is continued even in penalty order where the AO has levied penalty under both the limbs, i.e. concealment of particulars of income and furnishing of inaccurate particulars of income. Therefore, we are of the considered view that notice issued by the AO u/s 274 r.w.s. 271(1)(c) is vague and which was issued without application of mind and hence, whole penalty proceedings is vitiated. Consequently, the penalty levied by the AO u/s 271(1)(c) cannot be sustained. - Penalty to be deleted - Decided in favor of assessee.
Issues Involved:
1. Levy of penalty under Section 271(1)(c) of the Income-tax Act, 1961. 2. Validity of penalty order pursuant to a notice issued under Section 274 read with Section 271(1)(c) of the Income-tax Act, 1961. Issue-wise Detailed Analysis: 1. Levy of Penalty under Section 271(1)(c) of the Income-tax Act, 1961: The assessee challenged the penalty levied under Section 271(1)(c) for concealment of income and furnishing inaccurate particulars of income. The case involved a survey action under Section 133(6) where it was found that the assessee was involved in hawala transactions, providing accommodation entries without actual delivery of goods. Consequently, the assessment was reopened under Section 147, and the income was assessed by estimating 1% profit on gross turnover. The assessment underwent multiple rounds of appeals, with the ITAT directing the AO to estimate income at 1% of total turnover and allow certain administrative expenses. The AO determined the total income at ?12,28,020 after allowing certain expenses. The AO initiated penalty proceedings under Section 271(1)(c) for concealment of income and furnishing inaccurate particulars of income. The assessee's explanation was rejected by the AO, who held that the assessee failed to furnish evidence to show no concealment of income. The AO concluded that the assessee had deliberately concealed income, citing the decision of the High Court of Rajasthan in CIT vs R.C. Gupta & Co., which held that admitted income represents concealed income. The CIT(A) upheld the AO's penalty order, noting that the assessee was engaged in hawala transactions and had not declared the income from such activities. The CIT(A) observed that the penalty was not imposed mechanically but was based on findings from the survey and subsequent assessment. The CIT(A) also dismissed the assessee's argument that penalty cannot be imposed on estimated income, stating that the income estimation was based on ITAT's directions and not on assumptions. 2. Validity of Penalty Order Pursuant to Notice Issued under Section 274 read with Section 271(1)(c): The assessee argued that the penalty notice issued under Section 274 read with Section 271(1)(c) was vague and lacked specific charges, whether for concealment of income or furnishing inaccurate particulars. The assessee cited the Supreme Court's decision in SSA Emerald Meadows and the Karnataka High Court's decision in Manjunatha Cotton & Ginning Factory, which held that a vague notice without specifying the charge vitiates the penalty proceedings. The ITAT considered the issue and noted that the AO issued a vague notice without striking off irrelevant portions, indicating non-application of mind. The ITAT referenced the Supreme Court and Karnataka High Court decisions, which established that such vague notices invalidate penalty proceedings. The ITAT found that the AO continued this lapse in the penalty order, levying penalty under both limbs of Section 271(1)(c). Consequently, the ITAT held that the penalty proceedings were vitiated due to the vague notice and directed the AO to delete the penalty levied under Section 271(1)(c). Conclusion: The ITAT allowed the appeals filed by the assessee, directing the AO to delete the penalty levied under Section 271(1)(c) of the Income-tax Act, 1961, for both assessment years 1996-97 and 1997-98. The ITAT's decision was based on the invalidity of the penalty notice issued under Section 274 read with Section 271(1)(c) due to its vague nature and lack of specific charges.
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