2019 (6) TMI 1257 - AT - Income Tax

Penalty u/s 271(1)(c) - defective notice - penalty notice have been issued without striking off one of the twin charges for levy of the penalty - HELD THAT - As held by the Hon'ble Supreme Court in CIT Vs. SSA Emerald Meadows 2016 (8) TMI 1145 - SC ORDER wherein, it has been held that notice issued by the ld AO u/s 274 read with section 271(1)(c) is bad in law as it did not specified as to which limb of that section the penalty proceedings have been initiated. Respectfully following the decisions of the coordinate bench in case of sister concern of the assessee, we cancel the penalty as none of the charges of the twin charges were struck off. Accordingly, additional grounds raised by the assessee are allowed and appeal of the assessee succeeds on this ground. As we have quashed the penalty on the issue of validity of notice, other, issues in the appeal becomes academic. Accordingly, appeal of the assessee is allowed quashing penalty levied u/s 271(1)(c) - Appeal of the assessee is allowed.

Issues:
1. Validity of penalty under Section 271(1)(c) of the Income Tax Act, 1961.
2. Additional grounds raised by the assessee challenging the legality and jurisdiction of the penalty proceedings.
3. Assessment of penalty on accrued marketing expenditure and contribution towards AMP activities.
4. Consideration of twin charges for levy of penalty and the validity of the penalty notice.

Analysis:

1. Validity of Penalty under Section 271(1)(c):
The appeal was filed against the order confirming the penalty levied under Section 271(1)(c) of the Income Tax Act. The appellant contended that the order was time-barred under Section 275 of the Act. However, the CIT(A) upheld the penalty. The ITAT considered the arguments and additional grounds raised by the assessee, admitting them as they pertained to jurisdictional matters. The brief facts of the case included the computation of income and subsequent additions made by the assessing officer, leading to the initiation of penalty proceedings.

2. Additional Grounds Raised by the Assessee:
The additional grounds raised by the assessee challenged the legality and jurisdiction of the penalty proceedings. The ITAT admitted these grounds as they were purely legal and fundamental to the subject matter of the appeal. The issues raised related to the initiation of penalty proceedings on jurisdictional matters, and the ITAT found them admissible for consideration.

3. Assessment of Penalty on Accrued Marketing Expenditure and Contribution towards AMP Activities:
The penalty proceedings were initiated based on disallowances related to marketing expenses under the Development Initiative Scheme and contributions towards AMP activities. The assessing officer issued a show cause notice, and upon rejection of the assessee's contentions, levied a penalty. The CIT(A) upheld the penalty imposed by the assessing officer on these grounds.

4. Consideration of Twin Charges for Levy of Penalty and Validity of Penalty Notice:
The ITAT considered the validity of the penalty notice issued by the assessing officer under Section 274 read with Section 271(1)(c) of the Act. It was observed that one of the twin charges for the levy of penalty was not struck off in the notice. Citing a Supreme Court judgment and decisions of a coordinate bench, the ITAT held that the notice was bad in law as it did not specify the limb of the section under which the penalty proceedings were initiated. Consequently, the penalty was canceled, and the additional grounds raised by the assessee were allowed. The appeal succeeded on this ground, leading to the quashing of the penalty imposed.

In conclusion, the ITAT allowed the appeal of the assessee, quashing the penalty levied under Section 271(1)(c) of the Act. The decision was based on the invalidity of the penalty notice and the failure to strike off one of the twin charges for the levy of penalty. The appeal was allowed, and the penalty of &8377; 29,93,984 was canceled.

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