2022 (10) TMI 161 - AT - Income Tax

Penalty u/s 271(1)(c) - Defective notice u/s 274 - non-strike off of the irrelevant part in the notice - HELD THAT - As could be seen from the above the Hon'ble Bombay High Court (Full Bench at Goa) in the case of Mr. Mohd. Farhan A. Shaikh v. ACIT 2021 (3) TMI 608 - BOMBAY HIGH COURT while dealing with the issue of non-strike off of the irrelevant part in the notice issued u/s.271(l)(c) of the Act, held that assessee must be informed of the grounds of the penalty proceedings only through statutory notice and an omnibus notice suffers from the vice of vagueness. As the notice u/s. 274 r.w.s. 271(l)(c) of the Act was issued without striking off the irrelevant portion of the limb and failed to intimate the assessee the relevant limb and charge for which the notices were issued. Thus penalty notice issued u/s. 271(l)(c) of the Act by the Assessing Officer is bad in law and accordingly the penalty order passed u/s. 271(l)(c) of the Act for Assessment Year 2008-09 is quashed. Even on merits penalty under section 271(1)(c ) of the Act is not leviable since the addition made by the Assessing Officer is on account of ad-hoc estimation of net profit @ 8% on the un-reconciled turnover as per books and as per Form 26AS and the addition is only of Rs.98,863/-. Additions made on ad-hoc basis on estimation does not attract penalty under section 271(1)(c) of the Act as there is no conclusive proof of concealment of income or furnishing of inaccurate particulars of income. Therefore, even on merits penalty is liable to be deleted. Appeal of assessee allowed.

Summary

Issues:
1. Whether the penalty notice specifying the grounds under section 271(1)(c) of the Income Tax Act was valid.
2. Whether the penalty imposed for concealment of income or furnishing inaccurate particulars of income was justified.
3. Whether the penalty proceedings were distinct from the assessment proceedings.

Analysis:

1. Issue 1 - Validity of Penalty Notice:
The appellant contended that the penalty notice under section 271(1)(c) was invalid as it did not specify the grounds for penalty. The Hon'ble Bombay High Court (Full Bench at Goa) in the case of Mr. Mohd. Farhan A. Shaikh v. ACIT held that an omnibus notice without specifying the charge for which the penalty was issued suffers from vagueness. The Court emphasized that the assessee must be informed of the grounds of the penalty proceedings through a statutory notice. The notice in question failed to strike off irrelevant parts, leading to ambiguity and rendering it bad in law.

2. Issue 2 - Justification of Penalty Imposed:
The appellant argued that there was no concealment or furnishing of inaccurate particulars of income, and the penalty was unjustified. The Hon'ble jurisdictional High Court upheld the Tribunal's decision, stating that the penalty notice must specify whether it is for concealment of income or furnishing inaccurate particulars. The penalty order was quashed as the notice failed to intimate the relevant limb and charge for which it was issued. Additionally, the assessment made on an ad-hoc basis, without conclusive proof of concealment or inaccurate particulars, did not warrant a penalty under section 271(1)(c) of the Act.

3. Issue 3 - Distinct Nature of Penalty Proceedings:
The appellant argued that penalty proceedings were separate from assessment proceedings. The Hon'ble Bombay High Court (Full Bench at Goa) emphasized that penalty proceedings must stand on their own and cannot cure defects in assessment proceedings. The Court highlighted that the notice for penalty must be precise and not vague to ensure fairness and justice. The penalty notice in this case was deemed invalid due to its lack of specificity, as it did not clearly state the grounds for the penalty.

In conclusion, the Tribunal allowed the appeal, quashing the penalty order as the penalty notice was found to be invalid and the penalty imposed was not justified based on the assessment made. The judgment reaffirmed the importance of clear and specific penalty notices in accordance with the provisions of the Income Tax Act to ensure procedural fairness and adherence to legal requirements.