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2020 (10) TMI 353 - AT - Income TaxPenalty u/s 271AAB - defective notice - non specification of charge - entries relating to commodity trading profit was not maintained in the regular books of accounts of the assessee AND from the document seized as seen only net earnings were recorded and that there were several such transactions in the month in commodity trading made in cash - HELD THAT - As relying on SHEVETA CONSTRUCTION CO. PVT. LTD. 2016 (12) TMI 1603 - RAJASTHAN HIGH COURT penalty in question is bad in law as the show-cause notice issued by the Assessing Officer does not specify the charge/s against the assessee for levy of penalty, as required by law. Thus, on this ground, the penalty is quashed. Section 271AAB of the Act, contemplates imposition of a penalty pursuant to the disclosure of income in statement recorded u/s 132(4) of the Act by the assessee. It is an admitted fact that no such statement has been recorded from the assessee. Thus, on this ground also, the levy of penalty fails. Nowhere in the assessment order it is stated that undisclosed income has been assessed. The assessment was made u/s 143(3) of the Act and the returned income was accepted - we quash the penalty levied u/s 271AAB of the Act and allow this appeal of the assessee.
Issues Involved:
1. Legality of the penalty notice issued under Section 271AAB of the Income Tax Act, 1961. 2. Validity of the assessment and penalty based on alleged incriminating documents found during the search. 3. Compliance with procedural requirements, including the issuance of a clear and specific penalty notice. Detailed Analysis: 1. Legality of the Penalty Notice Issued Under Section 271AAB: The core issue was whether the penalty notice issued under Section 271AAB was legally valid. The assessee argued that the notice was vague and did not specify the charge, making it legally untenable. The Tribunal cited precedents from the Jaipur Bench in the case of Padam Chand Pungliya and the Indore Bench in the case of Shri Ravi Mathur to support the argument that a penalty notice must clearly specify the grounds and default of the assessee. The Tribunal held that the notice issued by the Assessing Officer (AO) did not meet these requirements, rendering the penalty order invalid. The Tribunal emphasized that the notice must provide a meaningful opportunity for the assessee to respond, which was not the case here. 2. Validity of the Assessment and Penalty Based on Alleged Incriminating Documents: The assessee contended that the commodity profit was not discovered through any incriminating material during the search, and it was already disclosed in the return of income. The AO had accepted the returned income without indicating any undisclosed income. The Tribunal noted that the assessment was completed under Section 143(3) without any mention of undisclosed income. The assessee argued that the documents found at the office of Ramkrishna Forging Ltd. could not be considered incriminating against her, as no statement was recorded under Section 132(4) from the assessee, and no action was taken under Section 153C of the Act. The Tribunal agreed with the assessee, stating that the penalty under Section 271AAB requires a disclosure of income in a statement recorded under Section 132(4), which was not done in this case. 3. Compliance with Procedural Requirements: The Tribunal scrutinized whether the procedural requirements for issuing a penalty notice were followed. The assessee argued that the notice was vague and did not specify the charge, relying on case laws that mandate clarity in penalty notices. The Tribunal observed that the notice issued did not specify the grounds for penalty, thus offending the principles of natural justice. The Tribunal referenced the Hon'ble Karnataka High Court's decision in the case of SSA's Emerald Meadows, which was upheld by the Supreme Court, to emphasize that a vague notice is not legally sustainable. Consequently, the Tribunal held that the penalty order was bad in law due to the defective notice. Conclusion: The Tribunal concluded that the penalty levied under Section 271AAB was invalid on multiple grounds. Firstly, the notice issued was vague and did not specify the charge, violating legal requirements. Secondly, no statement under Section 132(4) was recorded from the assessee, and the assessment did not indicate any undisclosed income. Therefore, the Tribunal quashed the penalty and allowed the appeal of the assessee. Result: The appeal of the assessee was allowed, and the penalty levied under Section 271AAB was quashed.
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