2015 (8) TMI 693 - AT - Income Tax

Penalty proceedings u/s. 271D - violation of section 269SS - revision order passed by CIT u/s. 263 - Held that - Hon ble Calcutta High Court in the case of CIT vs. Linotype & Machinery Ltd., (1989 (7) TMI 9 - CALCUTTA High Court) held that the failure of the A.O. to initiate proceedings under section 271D for violation of section 269SS could not be considered as an error calling for revision under section 263. We therefore, find merit in the contention of the Ld. Counsel for the assessee that there were no errors in the orders passed by the A.O. which were prejudicial to the interests of the Revenue calling for revision by the Ld. CIT(A) under section 263. - Decided in favour of assessee.

Summary

Issues Involved:
Appeal against revision order passed by CIT under section 263 of the Income-tax Act, 1961 regarding initiation of penalty proceedings under section 271D for violation of section 269SS.

Detailed Analysis:

Issue 1: Revision Order by CIT under Section 263
The appeal by the assessee challenges the revision order passed by the Commissioner of Income Tax (CIT) under section 263 of the Income-tax Act, 1961. The CIT revised the assessment framed by the Assessing Officer (AO) for Assessment Year 2009-10. The primary contention of the assessee revolves around the initiation of penalty proceedings under section 271D for violating section 269SS of the Act. The CIT directed the initiation of penalty proceedings based on the assessee taking unsecured loans in cash exceeding the prescribed limit. The CIT's order highlighted the failure of the AO to notice the violation of section 269SS and levy the penalty under section 271D, deeming it prejudicial to the interest of revenue.

Issue 2: Challenge on the Initiation of Penalty Proceedings
The main issue raised by the assessee in the appeal pertains to the propriety of initiating penalty proceedings under section 271D as directed by the CIT. The assessee contested that the initiation of penalty was beyond the scope of section 263 and cited relevant case law to support this argument. The assessee relied on the judgment of the Hon'ble Calcutta High Court in a similar case, emphasizing the distinction between assessment proceedings and penalty proceedings. The High Court's decision clarified that penalty proceedings do not form part of assessment proceedings, and the failure to record the initiation of penalty proceedings in the assessment order does not render the assessment erroneous or prejudicial to revenue. The High Court held that the Income-tax Officer must exercise discretion in initiating penalty proceedings and recording satisfaction regarding the levy of penalty based on the facts of the case.

Conclusion:
The Tribunal, considering the legal position established by the Hon'ble Calcutta High Court, allowed the issue raised by the assessee in the appeal. The Tribunal concurred with the High Court's interpretation that penalty proceedings are distinct from assessment proceedings, and the failure to record the initiation of penalty proceedings in the assessment order does not invalidate the assessment. Therefore, the Tribunal allowed the appeal by the assessee, emphasizing the need for the Income-tax Officer to exercise discretion in initiating penalty proceedings and recording satisfaction regarding the imposition of penalties based on the circumstances of each case.