2019 (4) TMI 1163 - AT - Income Tax

Penalty u/s 271AAB - no notice of initiating penalty u/s 271AAB(1)(a) was given to the assessee - defective notice - defect curable u/s 292BB - HELD THAT - A bare reading of the notice suggests that the notice has been issued in a casual fashion. AO has not applied his mind and no specific charge is mentioned for which the assessee was required to be show caused. In absence of the requisite contents of specific charge the initiation of proceedings cannot be sustained being bad in law. Admittedly, CIT(A) reduced the penalty by applying the provisions of section 271AAB(1)(a). There is no ambiguity under the law so far powers of Ld. CIT(A) is concerned, he can modify the penalty order by enhancing or reducing the penalty. However, where the Act provides for two different rates under different two provisions of law in our considered view, the assessee ought to have been given an opportunity of hearing on this aspect. However, in the present case at the very inception notice initiating penalty is not in accordance with mandates of law. Moreover, it is settled position of law that such defect is not curable u/s 292BB of the Act. Therefore, we hereby quash the penalty order. - Decided in favour of assessee.

Summary

Issues:
1. Validity of penalty imposed under section 271AAB of the Income Tax Act, 1961 without a proper show-cause notice.
2. Reduction of penalty by the Commissioner of Income Tax (Appeals) and the subsequent appeal against the order.

Issue 1: Validity of Penalty without Proper Show-Cause Notice
The appellant challenged the penalty imposed under section 271AAB of the Income Tax Act, 1961, arguing that the Assessing Officer (AO) did not issue a proper show-cause notice as required under section 274 of the Act. The appellant contended that the penalty was imposed without specifying the charge and without considering the admission of undisclosed income. The appellant cited various case laws to support the argument that the penalty initiation was flawed. The appellant emphasized that the notice issued was illegal and not sustainable in the eyes of the law.

Issue 2: Reduction of Penalty by Commissioner of Income Tax (Appeals)
The appellant, aggrieved by the penalty imposed, appealed to the Commissioner of Income Tax (Appeals) who reduced the penalty to 10% of the undisclosed income. However, the appellant contended that the initiation of penalty under section 271AAB was ex facie bad in law. The appellant argued that the AO did not make a specific charge and relied on the decision of the Honorable Supreme Court and various Tribunal decisions to support the contention that the penalty initiation was flawed. The appellant further argued that the notice issued was not in accordance with the law and that the defect was not curable under the Income Tax Act.

Judgment:
Upon hearing the arguments and examining the records, the Tribunal found that the notice issued for the penalty was casual and lacked a specific charge, rendering the initiation of proceedings unsustainable in law. The Tribunal noted that the Commissioner of Income Tax (Appeals) had reduced the penalty based on a different provision of the Act without providing an opportunity of hearing to the assessee. The Tribunal held that the defect in the notice was not curable under the Act and consequently quashed the penalty order. As a result, the appeal of the Assessee was allowed, and the penalty order was set aside.

Conclusion:
The Tribunal's decision emphasized the importance of issuing a proper show-cause notice before imposing a penalty under the Income Tax Act. The judgment highlighted the necessity for adherence to legal procedures and the requirement for specific charges to be mentioned in penalty initiation notices. The case serves as a reminder of the significance of procedural compliance in tax matters and the consequences of failing to adhere to statutory requirements.