2015 (10) TMI 2040 - AT - Income Tax

Penalty under sec. 271(1)(c) - Held that - The additions have been confirmed upto to the stage of the Tribunal; however, the appeals against the quantum are pending for adjudication before the Hon ble High Court of Gujarat. There is no dispute with regard to the fact that at both stages, i.e., quantum as well as penalty proceedings, the assessee remained absent. However, before the CIT(A), in penalty proceedings, the assessee had filed the evidences which have been considered at length and has given a finding that the appellant has failed to discharge its onus of proving the identity of these persons, genuineness of transactions and creditworthiness; therefore, on merit none of the creditors are allowable. We have given our thoughtful consideration to the facts of the case. One of the grounds admitted by the Hon ble Jurisdictional High Court is with regard to the service of notice u/s 148 which goes to the very root of the reopening of assessment proceedings. Therefore, under these facts, we hereby set aside the orders of the authorities below on the issue of levying penalty. The Assessing Officer is directed to decide the issue afresh after the outcome of the question Nos. 4 6 admitted by the Hon ble jurisdictional High Court i.e. (4) Whether in the facts and circumstances of the case, learned ITAT has erred in law in not appreciating the fact that, admittedly notice u/s 148 dated 29.05.2001 was served on different address than shown in the return and is not valid service? (6) Whether in the facts and circumstances of the case, learned ITAT has erred in law in not appreciating the facts that, there is no tangible material for AY 1994-95 vide notice dated 29.05.2001 which is beyond 4 years from end of the relevant AY and the said notice is bad in law?

Issues Involved:
1. Delay in filing the appeal.
2. Justification for penalty under Section 271(1)(c) of the Income-tax Act.
3. Sufficient opportunity to represent the case.
4. Merits of the additions made by the Assessing Officer.
5. Validity of notice under Section 148.
6. Onus of proving the identity, creditworthiness, and genuineness of transactions.
7. Application of mind by higher authority before granting approval for reopening assessment.
8. Discharge of initial onus under Section 68 by the assessee.

Detailed Analysis:

1. Delay in Filing the Appeal:
The assessee contended that the CIT(A) erred in not appreciating the written submission explaining the delay in filing the appeal and should have condoned the delay by following the rule of natural justice. The CIT(A) dismissed the appeal on the grounds of delay as well as on merits.

2. Justification for Penalty under Section 271(1)(c):
The assessee argued that the penalty under Section 271(1)(c) is not automatic or consequential in nature and should not have been levied merely because the quantum addition was confirmed. The authorities below were not justified in imposing and confirming the penalty, as the details of the creditors were provided, but the evidences were disregarded.

3. Sufficient Opportunity to Represent the Case:
The assessee claimed that there was a gross violation of the principles of natural justice as the order imposing penalty was passed without representation from the assessee. The Assessing Officer had finalized the assessment under Section 144 due to non-cooperation from the assessee, who was not present in India and had not paid his fees to the representative.

4. Merits of the Additions Made by the Assessing Officer:
The Tribunal noted that in quantum proceedings, the assessee was given sufficient opportunity but failed to prove the source of credit entries. The assessee did not file confirmation letters from most creditors and could not establish the identity, creditworthiness, and genuineness of the transactions. The CIT(A) passed a well-reasoned order on the merits, which the assessee could not controvert.

5. Validity of Notice under Section 148:
One of the grounds admitted by the Hon'ble Jurisdictional High Court was regarding the service of notice under Section 148, which goes to the root of the reopening of assessment proceedings. The High Court admitted the issue for consideration of whether the notice was served on a different address than shown in the return and whether there was tangible material for issuing the notice beyond four years from the end of the relevant assessment year.

6. Onus of Proving the Identity, Creditworthiness, and Genuineness of Transactions:
The Tribunal observed that the assessee failed to discharge the onus of proving the identity, creditworthiness, and genuineness of the creditors. Despite sufficient opportunity, the assessee could not provide adequate evidence to substantiate the credit entries.

7. Application of Mind by Higher Authority Before Granting Approval for Reopening Assessment:
The High Court admitted the issue of whether the higher authority applied its mind before granting approval for the reopening of the assessment, which is essential for the validity of the proceedings.

8. Discharge of Initial Onus under Section 68 by the Assessee:
The assessee argued that it had discharged the initial onus under Section 68 by providing addresses, PAN numbers, and requesting the issuance of summons to the creditors. However, the authorities below did not accept this explanation, leading to the confirmation of the penalty.

Conclusion:
The Tribunal set aside the orders of the authorities below on the issue of levying penalty and directed the Assessing Officer to decide the issue afresh after the outcome of the questions admitted by the Hon'ble Jurisdictional High Court. The appeals for both assessment years were allowed for statistical purposes.

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