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2018 (12) TMI 823 - AT - Income TaxPenalty u/s 271(1)(c) - non filing the return of income and non-payment of the taxes due to the government - Jurisdiction for revision u/s 263 also invoked - Held that - The assessee is in the habit of not filing the return of income and non-payment of the taxes due to the government. Since the assessee has not filed the return of income though it has taxable income the AO ought to have initiated the penalty proceedings for concealment of income. Since the AO did not initiate the penalty proceedings the Ld.Pr.CIT has taken up the case for revision u/s 263 and held that non initiation of penalty proceedings which ought to have been initiated during the assessment proceedings as erroneous and prejudicial to the interest of the revenue. CIT has considered the amended provisions of section 271 w.e.f. 01.06.2002 the provision u/s 263 and rejected the rejected the objections of the Ld.AR challenging the jurisdiction of the Ld.Pr.CIT for giving directions to initiate the penalty u/s 271(1)(c). The issue with regard to initiation of penalty proceedings by the CIT and directions of the Ld.Pr.CIT to AO to initiate the penalty proceedings was considered by this Tribunal in the case of U.V.Ramanamurthy Raju 2017 (8) TMI 475 - ITAT VISAKHAPATNAM and held that the Pr.CIT is empowered to initiate the penalty proceedings and also empowered to direct the AO to initiate the penalty proceedings u/s 271(1)(c) r.w.s 263 of the Act in revision proceedings u/s 263. - Decided against assessee.
Issues Involved:
1. Validity of the direction given by the Principal Commissioner of Income Tax (Pr.CIT) to initiate penalty proceedings under section 271(1)(c) of the Income Tax Act, 1961. Issue-wise Detailed Analysis: 1. Validity of the Direction to Initiate Penalty Proceedings: The appeals were filed by the assessee against the order of the Pr.CIT-1, Visakhapatnam, under section 263 of the Income Tax Act, 1961, for the assessment years 2008-09 to 2010-11. The only issue in these appeals was related to the validity of the direction given by the Pr.CIT to initiate penalty proceedings under section 271(1)(c) of the Act. For the assessment years 2012-13 to 2014-15, the assessee did not file returns of income. The Pr.CIT received information from service tax authorities indicating taxable income earned by the assessee for the impugned assessment years. Consequently, the Pr.CIT issued a letter dated 10.12.2015 to ascertain the status of filing the return of income. The assessee filed the return of income on 28.03.2016 for all the impugned assessment years with the concerned Assessing Officer (AO). Subsequently, the AO issued a notice under section 148, and the assessee requested to treat the return of income already filed on 28.03.2016 as a return in response to the notice under section 148. The AO asked the assessee to file the e-return, which was done accordingly. The cases were converted into scrutiny, and notices under sections 143(2) and 142(1) were issued to the assessee, completing the assessment on total income for the assessment years under section 143(3). Subsequently, the Pr.CIT took up the case for revision under section 263 and observed that the assessment was completed under section 143(3), but the return was filed subsequent to the date of issue of the letter and the notice under section 148. The Pr.CIT noted that the assessee did not file the returns of income despite having taxable income, and the returns were filed only after departmental enquiries and notices. The AO completed the assessment without initiating penalty proceedings, though it was a fit case for initiating penalty proceedings under section 271(1)(c) of the Act. The Pr.CIT held that the order passed by the AO under section 143(3) was erroneous and prejudicial to the interest of the revenue, hence issued the notice under section 263 and called for the explanation of the assessee. The assessee contended that penalty proceedings are not part of assessment proceedings, and giving directions to initiate penalty proceedings under section 271(1)(c) in revision is beyond the scope of section 263. The Pr.CIT examined all facts and circumstances and held that under the amended provisions of section 271(1)(c) of the Act w.e.f. 01.06.2002, the Pr.CIT is empowered to initiate penalty and set aside the order passed by the AO for initiating penalty proceedings. The Pr.CIT relied on decisions such as CIT Vs. Ashok Constructions [280 ITR 368 (Allahabad High Court)], CIT Vs. Surendra Prasad Agarwal [273 ITR 113 (Allahabad High Court)], and Star Diamond Tools Vs. ITO [1 ITD 696/14 TTJ 59 (ITAT Mumbai)] to establish that the Pr.CIT is empowered to take action under section 263 for non-initiation of penalty proceedings under section 271(1)(c) in a suitable case. The assessee appealed against the Pr.CIT's order, arguing that non-initiation of penalty proceedings does not render the assessment made under section 143(3) as erroneous and prejudicial to the interest of the revenue. The assessee relied on decisions of the Hon’ble High Court of Karnataka in Commissioner of Income Tax & Anr. Vs. Manjunatha Cotton & Ginning Factory [359 ITR 0565] and the Hon’ble High Court of Punjab & Haryana in Commissioner of Income Tax Vs. Rakesh Nain Trivedi [128 DTR 0309 (P&H)]. The Tribunal, after hearing both parties, noted that the assessee had taxable income for the impugned assessment years but did not file the return of income within the specified dates. The assessee filed the return of income only after the issue of notice under section 148. The Tribunal held that the AO ought to have initiated penalty proceedings for concealment of income. Since the AO did not initiate the penalty proceedings, the Pr.CIT rightly took up the case for revision under section 263 and directed the AO to redo the assessment duly initiating penalty proceedings under section 271(1)(c) of the Act. The Tribunal referred to its earlier decision in the case of U.V.Ramanamurthy Raju, Visakhapatnam, and upheld the Pr.CIT's order, stating that the Pr.CIT is empowered to initiate penalty proceedings and also direct the AO to initiate penalty proceedings under section 271(1)(c) read with section 263 of the Act in revision proceedings. Conclusion: The Tribunal dismissed the appeals of the assessee and upheld the order of the Pr.CIT, confirming that the Pr.CIT has the authority to direct the AO to initiate penalty proceedings under section 271(1)(c) of the Act in revision proceedings under section 263.
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