2022 (8) TMI 623 - AT - Income Tax

Revision u/s 263 - penalty proceedings u/s 271AAB(1A) - As per CIT AO did not take a conscious decision relating to noninitiation/ incorrect initiation of penalty which cause prejudice to the revenue - HELD THAT - AO has initiated penalty proceedings u/s 271 AAB(1A) with the observations that the amount of investment made by the assessee for purchase of motorcycle in cash is added to his total income treated as unexplained investment u/s 69 and tax is charged as per provisions of section 115BBE. Assessee has offered Rs.1,25,000/- for taxation during search proceedings in statement u/s 132(4), however, the assessee has not included Rs.1,25,000/- in the return filed u/s 153A, therefore, penalty proceedings u/s 271AAB(1A) is initiated accordingly. AR argued that the AO has taken conscious decision to initiate the penalty proceedings u/s 271AAB(1A) of the Act. It may be noted that both u/s 271(1)(c) and u/s 271AAB it is the AO who is to satisfy himself whether on the additions made, penalty proceedings is required to be initiated or not and also the section under which it is to be initiated. The mandate under section 263 of the Act do not give any power to CIT to impose his satisfaction over the satisfaction of AO as to whether the penalty proceedings are toinitiated or not and if initiated under which section/clause. In our view, on examination of assessment record, the PCIT cannot direct initiation of penalty proceedings because penalty proceedings are not part of assessment proceedings. Thus, the PCIT s revisionary decision relating to non-initiation/incorrect initiation of penalty which without holding that assessment order passed by the AO as erroneous and prejudicial to the interest of revenueis vague and bad in law. Respectfully, following the jurisdictional High Court in the case of CIT Vs. Keshrimal Parasmal 1985 (5) TMI 34 - RAJASTHAN HIGH COURT we hold that the PCIT is not entitled to direct the AO to initiate penalty proceedings. Accordingly, the order passed under s. 263 is quashed. - Decided in favour of assessee.

Summary

Issues Involved:
1. Legality of the order passed by the PCIT under section 263.
2. Erroneous initiation of penalty proceedings by the Assessing Officer (AO).
3. Authority of the PCIT to direct initiation of penalty proceedings.
4. Validity of the assessment order and the subsequent penalty proceedings.

Detailed Analysis:

1. Legality of the order passed by the PCIT under section 263:
The assessee challenged the order passed by the PCIT under section 263 of the Income Tax Act, arguing that it was illegal and bad in law. The PCIT had issued a notice under section 263, stating that the assessment order was erroneous and prejudicial to the interest of the revenue because the AO had initiated penalty proceedings under section 271AAB(1A) instead of section 271(1)(c). The PCIT directed the AO to initiate and levy penalty under the correct section after independently arriving at due satisfaction.

2. Erroneous initiation of penalty proceedings by the AO:
The AO had initiated penalty proceedings under various sections for different assessment years, including section 271AAB(1A) for the assessment year 2016-17. The PCIT argued that the penalty should have been initiated under section 271(1)(c) as the case did not fall under the specified provisions of section 271AAB(1A). The PCIT held that this error caused prejudice to the interest of the revenue.

3. Authority of the PCIT to direct initiation of penalty proceedings:
The assessee contended that section 263 does not empower the PCIT to impose his satisfaction over the AO's satisfaction regarding the initiation of penalty proceedings. The assessee cited various judicial precedents, including CIT Vs. Rakesh Nain Trivedi and CIT Vs. Keshrimal Parasmal, which held that the PCIT cannot direct the AO to initiate penalty proceedings under section 263. The Tribunal agreed with this contention, stating that penalty proceedings are independent and separate from assessment proceedings, and the PCIT cannot direct the initiation of penalty proceedings if the AO has not done so in the assessment order.

4. Validity of the assessment order and the subsequent penalty proceedings:
The Tribunal observed that the AO had consciously decided to initiate penalty proceedings under section 271AAB(1A) based on the facts of the case. The PCIT's revisionary decision was deemed vague and bad in law as it did not hold the assessment order to be erroneous and prejudicial to the interest of the revenue. The Tribunal quashed the order passed under section 263, following the jurisdictional High Court's ruling in CIT Vs. Keshrimal Parasmal, which held that the PCIT is not entitled to direct the AO to initiate penalty proceedings.

Conclusion:
The appeal filed by the assessee was allowed, and the order passed by the PCIT under section 263 was quashed. The Tribunal held that the PCIT cannot direct the AO to initiate penalty proceedings and that the AO's decision to initiate penalty proceedings under section 271AAB(1A) was a conscious and valid decision.