2019 (6) TMI 397 - AT - Income Tax

Levy of penalty u/s 271(1)(c) - defective notice - non specification of charge - disallowance of exemption of long term capital gains incurred on selling of shares and unexplained expenditure on account of commission - HELD THAT - Penalty is not leviable in the matter. The Hon ble Karnataka High Court in the case of CIT vs. M/s. SSAs Emerald Meadows 2015 (11) TMI 1620 - KARNATAKA HIGH COURT confirmed by 2016 (8) TMI 1145 - SC ORDER in which the Tribunal has allowed the appeal filed by assessee holding that notice issued by the A.O. under section 274 r.w.s. 271(1)(c) to be bad in Law and it did not specify in which limb of Section 271(1)(c) the penalty proceedings had been initiated i.e. whether for concealment of particulars of income or furnishing inaccurate particulars of income. In the present case the A.O. issued show cause notice dated 28.12.2016 which is also mentioned in the penalty order in which A.O. did not specify under which limb of Section 271(1)(c) the penalty proceedings had been initiated i.e. whether for concealment of particulars of income or furnishing inaccurate particulars of income. Even in the assessment order A.O. did not mention as to under which limb of Section 271(1)(c) the penalty have been initiated against the assessee as noted above. Therefore the show cause notice for levy of the penalty itself is invalid and bad in law - Decided in favour of assessee

Summary

Issues:
1. Validity of show cause notice for penalty under section 271(1)(c) of the I.T. Act, 1961.
2. Whether penalty for furnishing inaccurate particulars and concealment of income is justified.

Issue 1: Validity of show cause notice for penalty under section 271(1)(c) of the I.T. Act, 1961:
The appeal was against the order challenging the levy of penalty under section 271(1)(c) of the I.T. Act, 1961. The Assessing Officer (A.O.) made additions to the income of the assessee and initiated penalty proceedings for furnishing inaccurate particulars and concealment of income. The show cause notice issued by the A.O. before levying the penalty was challenged by the counsel for the assessee as being invalid and bad in law. The A.O. did not specify the limb of Section 271(1)(c) under which the penalty was imposed. The issue was compared to a judgment of the Hon'ble Karnataka High Court and the Hon'ble Supreme Court, which held that a notice not specifying the limb of penalty proceedings is invalid. The Tribunal found the notice in this case to be invalid, thereby canceling the penalty.

Issue 2: Whether penalty for furnishing inaccurate particulars and concealment of income is justified:
The Department argued that since the assessee surrendered the amount for taxation, the penalty was rightly imposed. However, the Tribunal, after considering the submissions, held that the penalty was not leviable in the matter. Citing the judgment of the Hon'ble Karnataka High Court and the Hon'ble Supreme Court, the Tribunal emphasized that the show cause notice did not specify the limb of Section 271(1)(c) under which the penalty proceedings were initiated. As the notice itself was deemed invalid and bad in law, the resultant proceedings were vitiated. The Tribunal set aside the orders of the authorities below and canceled the penalty, ultimately allowing the appeal of the assessee.

In conclusion, the Tribunal found the show cause notice for penalty to be invalid due to the lack of specification regarding the limb of Section 271(1)(c) under which the penalty proceedings were initiated. This led to the cancellation of the penalty imposed on the assessee for furnishing inaccurate particulars and concealment of income.