2017 (1) TMI 996 - AT - Income Tax

Levy of penalty u/s. 271(1)(c) - unexplained deposits in the Bank account - addition u/s 68 - Held that - The notice issued for levy of penalty u/s. 271(1)(c) does not clearly spell out the charge for levy of penalty, therefore, the same is defective, null and void and the subsequent proceedings arising there from are vitiated. Accordingly, the penalty is liable to be cancelled on this account alone. The deposits made in the bank account were not routed through cash book of the assessee. The entries are made in the bank passbook and there are no cash credit entries in the cash book of the assessee. Therefore, the addition made u/s. 68 is not sustainable. Once, the addition is held as not sustainable, there is no question of levy of penalty on such addition. Purchase of scooter a perusal of bank statement clearly shows that a sum of ₹ 41,378/- has been debited from the account of assessee on 13-08-2008 for payment to Nilesh Motors. The Assessing Officer has made addition in respect of cash credits in the Bank account. Since, the payment has been made from same bank account for purchase of scooter, this would result in double addition. Therefore, such an addition is not sustainable and therefore does not attract penalty u/s. 271(1)(c) of the Act. Undisclosed investment in plots - The dispute is only with regard to the assessment year in which transaction has to be recorded in the books of account. Under such circumstances we are of the view that no penalty is to be levied on addition, where the dispute is with regard to year of taxability. - Decided in favour of assessee

Issues Involved:
1. Validity of penalty proceedings due to defective notice under section 274 r.w.s. 271(1)(c) of the Income Tax Act.
2. Legitimacy of penalty levied on unexplained cash deposits under section 68 of the Act.
3. Legitimacy of penalty on undisclosed closing credit balance in ICICI bank account.
4. Legitimacy of penalty on undisclosed investment in plots.
5. Legitimacy of penalty on the purchase of a scooter.

Detailed Analysis:

1. Validity of Penalty Proceedings Due to Defective Notice:
The assessee contended that the penalty proceedings were invalid due to a defective notice issued under section 274 r.w.s. 271(1)(c) of the Income Tax Act. The notice did not clearly specify the charge for the levy of penalty, as the irrelevant clause was not struck off. The Tribunal referenced the case of Kanhaiyalal D. Jain Vs. The Asstt. Commissioner of Income Tax, where penalties were deleted due to ambiguous charges in the notice. The Tribunal concluded that the defective notice rendered the penalty proceedings null and void, thus invalidating the subsequent proceedings.

2. Legitimacy of Penalty on Unexplained Cash Deposits:
The penalty was levied on unexplained cash deposits amounting to ?4,05,000 in the ICICI bank account under section 68 of the Act. The Tribunal noted that section 68 applies only to cash credits in the books of account, not bank passbooks. Citing the decisions in Commissioner of Income Tax Vs. Bhaichand N. Gandhi and Commissioner of Income Tax Vs. Baroda Tin Works, the Tribunal held that additions based on bank passbook entries are unsustainable. Consequently, the penalty on such additions was deemed invalid.

3. Legitimacy of Penalty on Undisclosed Closing Credit Balance:
The assessee argued that the undisclosed closing credit balance of ?10,777 in ICICI bank accounts was from the sale of agricultural produce and not routed through the regular cash book. The Tribunal found that the amounts were indeed from agricultural income and were not included in the balance sheet due to their routing through the bank account. Therefore, the penalty on this amount was considered unjustified.

4. Legitimacy of Penalty on Undisclosed Investment in Plots:
The assessee purchased plots for ?2,00,000, with the sale deed registered on 17-03-2009 but possession received in April 2009. The Tribunal noted that the transaction was recorded in the next financial year due to the delayed possession. The Tribunal concluded that the dispute was merely about the year of taxability, and thus, no penalty should be levied on such additions.

5. Legitimacy of Penalty on Purchase of Scooter:
The assessee purchased a scooter for ?41,378, paid through the ICICI bank account. The Tribunal verified the bank statement and found that the payment was indeed made from the same account. As the addition was based on cash credits in the bank account, penalizing the purchase would result in double addition. Hence, the Tribunal deemed this addition unsustainable and directed the cancellation of the penalty.

Conclusion:
The Tribunal concluded that the penalty proceedings were invalid due to the defective notice. Additionally, on merits, the penalties on unexplained cash deposits, undisclosed closing credit balance, investment in plots, and the purchase of a scooter were found unjustified. Accordingly, the Tribunal directed the cancellation of the penalty and allowed the appeal of the assessee.

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