2019 (4) TMI 100 - AT - Income Tax

Penalty u/s 271(1)(c) - defective notice - non striking of inappropriate words in the penalty notice - Non specification of charge - addition u/s 68 on account of share capital receipt from different persons and an amount being commission paid for arranging the accommodation entries - HELD THAT - The notice issued u/s 274 r.w.s. 271 (1) (c) of the IT Act that the inappropriate words in the said notice have not been struck of. I find the coordinate bench of the Tribunal in the case of Sanjay Mitra Vs. DCIT 2018 (10) TMI 132 - ITAT DELHI has decided an identical issue and the penalty so levied by the Assessing officer and upheld by the CIT(A) has been deleted. Notice does not specify as to under which limb of the provisions, the penalty u/s 271 (1) (c ) have been initiated thus penalty levied u/s 271 (1) (c ) is not sustainable and has to be deleted. - Decided in favour of assessee.

Summary

Issues:
Challenge to penalty levied under section 271(1)(c) of the IT Act by the respective assesses.

Analysis:
In both appeals, the assesses contested the penalty imposed by the CIT(A) under section 271(1)(c) of the IT Act. The assesses' returns were reopened, resulting in the addition of income due to share capital receipts and commission paid for accommodation entries. The Assessing Officer initiated penalty proceedings, which were upheld by the CIT(A). The assesses raised various grounds of appeal, including challenges to the validity of the notice issued under section 274 r.w.s 271, the basis for imposing the penalty, and the independence of penalty proceedings from assessment proceedings.

The assesses argued that the penalty was not sustainable due to the inappropriate words not being struck off in the notice issued under section 274 r.w.s 271. They cited several decisions supporting their position, emphasizing that the penalty could not stand if the notice did not specify the exact charge for the penalty. The Departmental Representative opposed these arguments, relying on precedents that emphasized the validity of penalty proceedings despite minor errors in notices.

The Tribunal considered the arguments and observed that the inappropriate words in the penalty notice had not been struck off, rendering the notice invalid. Citing previous decisions, the Tribunal concluded that the penalty under section 271(1)(c) was not sustainable in such cases. The Tribunal highlighted the importance of following the view favorable to the assessee when two interpretations were possible, as per Supreme Court precedent. Consequently, the Tribunal set aside the CIT(A)'s order and directed the Assessing Officer to cancel the penalties imposed.

In a subsequent appeal with similar grounds, the Tribunal reiterated its decision based on the non-striking off of inappropriate words in the penalty notice, leading to the cancellation of the penalty. The Tribunal allowed both appeals filed by the assesses, emphasizing the importance of ensuring the validity of penalty notices and specifying the charge for penalties under section 271(1)(c) of the IT Act.

In conclusion, the Tribunal upheld the assesses' appeals, emphasizing the need for clarity and specificity in penalty notices under the IT Act and the importance of following the view favorable to the assessee in case of ambiguous interpretations.