2018 (7) TMI 355 - AT - Income Tax

Penalty u/s 271(1)(c) - concealed the particulars of his income or furnished inaccurate particulars of such income - non striking-off of the irrelevant limb in notice - Held that - Assessing Officer in his assessment order dated 28.11.2011 initiated the penalty on account of furnishing the inaccurate particulars whereas the penalty has been levied on account of concealment of income by virtue of order dated 19.04.2012 which is not justifiable in accordance with law. - Decided in favour of assessee.

Summary

Issues Involved:
1. Delay in filing the appeal.
2. Confirmation of penalty levied under Section 271(1)(c) of the Income Tax Act, 1961.
3. Specificity of the penalty notice regarding the charge of furnishing inaccurate particulars or concealing income.

Issue-wise Detailed Analysis:

1. Delay in Filing the Appeal:
The assessee filed the appeal with a delay of 31 days. The delay was attributed to the assessee's involvement in his nephew's marriage and a visit to Ajmer Sharif, Rajasthan. Additionally, the absence of a chartered accountant contributed to the delay. The application for condonation of delay was supported by an affidavit. The Tribunal condoned the delay, considering the reasons to be genuine and beyond the control of the assessee, thus allowing the appeal to be heard on merits.

2. Confirmation of Penalty Levied Under Section 271(1)(c):
The penalty of ?7,50,000 was levied on the assessee for furnishing inaccurate particulars of income. The assessment was completed under Section 143(3), determining a total income of ?27,17,100 against the returned income of ?5,30,973. The case was selected for scrutiny due to the assessee's investment in immovable property worth ?1,23,46,000. The assessee disclosed a 1/6th share amounting to ?11,33,333 and received ?12,00,000 from an NRI, which was treated as income due to failure in establishing the identity, creditworthiness, and genuineness of the claim. The penalty proceedings were initiated for furnishing inaccurate particulars, but the penalty was levied for concealment of income, leading to a dispute over the justification of the penalty.

3. Specificity of the Penalty Notice:
The Tribunal observed that the penalty notice did not specify whether the penalty was for "furnishing inaccurate particulars" or "concealment of income," as the relevant limb was not struck off. This lack of specificity was deemed a significant issue. The Tribunal referenced several judicial precedents, including the Supreme Court's decision in *Dilip N. Shroff* and the Bombay High Court's decision in *Shri Samson Perinchery*, which emphasized the need for clarity in the penalty notice. The non-striking off of the irrelevant clause in the notice was seen as a reflection of non-application of mind by the Assessing Officer and a violation of natural justice principles. It was noted that the assessee must be made aware of the specific charge to defend accordingly.

The Tribunal concluded that the penalty notice suffered from the vice of non-application of mind and was untenable. Consequently, the penalty imposed under Section 271(1)(c) was deleted. The Tribunal set aside the order passed by the CIT(A) confirming the penalty, thereby allowing the appeal filed by the assessee.

Conclusion:
The appeal was allowed on the grounds of non-specificity in the penalty notice and non-application of mind by the Assessing Officer. The Tribunal emphasized the importance of clarity in penalty notices to ensure compliance with natural justice principles. The penalty of ?7,50,000 levied under Section 271(1)(c) was deleted, and the order of the CIT(A) was set aside.