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2019 (1) TMI 291 - AT - Income TaxPenalty u/s. 271(1)(c) - Addition on account of advertisement for non deduction of tds - Held that - Disallowance has been sustained on the ground that necessary evidence and voucher of advertisement were not produced and the TDS was not deducted. We find that this is not at all a case of concealment of income or furnishing of inaccurate particulars of income. All the details including identity of the payee were there. Disallowance has solely been done as the assessee was not able to produce the concerned evidence of expenditure being of advertisement in nature. Hence, if a claim of the assessee is rejected, the same does not automatically lead to levy of penalty u/s. 271(1)(c). See RELIANCE PETROPRODUCTS PVT. LTD. 2010 (3) TMI 80 - SUPREME COURT . Disallowance made u/s. 43B on account of remittance of service tax collected to the government account - Held that - Here also we find that all the particulars were duly and correctly disclosed. It is not a case of concealment or furnishing of inaccurate particulars of income. Rejection of the assessee s claim as held by the Hon ble Apex Court in Reliance Petroproducts (P.) Ltd.(supra) will not automatically led to levy of penalty u/s. 271(1)(c). Furthermore, the view that section 43B is not attracted on service tax collected has been upheld by the Hon ble Delhi High Court decision in the case of CIT vs. Noble & Hewitt (I) P. Ltd. 2007 (9) TMI 238 - DELHI HIGH COURT . Hence, the penalty u/s. 271(1)(c) on this addition is also not sustainable. Due to absence of satisfaction and identification of the specific charge for levy of penalty, the penalty in this case deserves to be deleted on this account also. - Decided in favour of assessee.
Issues Involved:
1. Deletion of penalty under Section 271(1)(c) of the Income Tax Act, 1961. 2. Specificity of the charge in the notice issued under Section 274 read with Section 271(1)(c). 3. Validity of penalty proceedings when the relevant limb of the charge is not specified. Issue-wise Detailed Analysis: 1. Deletion of Penalty under Section 271(1)(c): The Revenue appealed against the order of the CIT(A) which deleted the penalty imposed under Section 271(1)(c) for the assessment year 2009-10. The Assessing Officer (AO) had initiated penalty proceedings on the grounds that the assessee had concealed particulars of income, leading to the imposition of penalty. However, the CIT(A) deleted the penalty, stating that the AO failed to specify the relevant limb of the charge in the notice issued under Section 274 read with Section 271(1)(c). 2. Specificity of the Charge in the Notice: The AO issued a penalty notice in a printed format without specifying whether the penalty was for "concealment of income" or "furnishing inaccurate particulars of income." The CIT(A) relied on various judgments from the Hon’ble Supreme Court and jurisdictional High Court, which mandated that the specific charge must be identified in the notice for the penalty to be valid. The CIT(A) concluded that the notices issued were defective due to non-application of mind, rendering the penalty orders invalid. 3. Validity of Penalty Proceedings: The Tribunal examined whether the penalty proceedings were valid when the specific charge was not identified. The AO had made additions to the total income, but did not clearly state whether the penalty was for concealment or for furnishing inaccurate particulars. The Tribunal noted that penalty under Section 271(1)(c) can only be levied if there is a clear finding of concealment or furnishing inaccurate particulars during the assessment proceedings. The Tribunal cited the Hon’ble Delhi High Court decision in CIT vs. SAS Pharmaceuticals, which emphasized that the determination of concealment or inaccurate particulars must be with reference to the returned income. Income Returned by the Assessee: The Tribunal found that the penalty on the returned income of ?2,41,14,437/- was not sustainable since the income was disclosed in the return. The AO did not specify any concealment or inaccurate particulars in the returned income. Addition of ?7,11,485/-: The Tribunal analyzed the penalty on the addition of ?7,11,485/-. The CIT(A) had deleted the addition of ?2,83,100/- as undisclosed income, and the Revenue did not appeal against this deletion. The Tribunal found that the disallowance of ?2,50,000/- for donations was due to lack of evidence and non-deduction of TDS, not due to concealment or inaccurate particulars. Similarly, the disallowance of ?1,75,386/- under Section 43B was due to non-remittance of service tax, but all particulars were disclosed. The Tribunal held that rejection of claims does not automatically lead to penalty under Section 271(1)(c), as per the Hon’ble Supreme Court decision in Reliance Petroproducts (P.) Ltd. Conclusion: The Tribunal upheld the CIT(A)’s order deleting the penalty, stating that the penalty was not sustainable due to the absence of a specific charge in the notice and lack of evidence of concealment or furnishing inaccurate particulars. The appeal by the Revenue was dismissed. Order Pronouncement: The order was pronounced by listing the result on the Notice Board of the Bench under Rule 34(4) of the Appellate Tribunal Rules, 1963.
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