2023 (1) TMI 571 - AT - Income Tax

Revision u/s 263 - PCIT has directed the AO to initiate penalty proceedings u/s. 271(1) (c) on disallowance u/s 37 (1) - HELD THAT - Decisions relied upon by the PCIT are with respect to when the order dropping the penalty proceedings are passed by the learned assessing officer whether they are subject to revision u/s 263 of the act or not. This is not the issue before us, the issue before us is whether when the AO has failed to record any satisfaction about the concealment or furnishing of the particulars of income and fails to initiate penalty proceedings u/s 271 (1) (C) of the act, whether such an order can be revised u/s 263 of the income tax act. Therefore, those decisions do not apply to the facts of the case. No hesitation in holding that the CIT is not correct in assuming jurisdiction u/s 263 of the income tax act where the learned assessing officer has failed to initiate penalty proceedings and also does not record any satisfaction of furnishing of inaccurate particulars or concealment of income in the assessment order. Assessee appeal allowed.

Summary

Issues:
- Jurisdiction of Principal Commissioner of Income Tax under section 263 of the Income Tax Act
- Validity of direction to initiate penalty proceedings u/s 271(1)(c) of the Act
- Impact of failure to initiate penalty proceedings by the Assessing Officer on the assessment order

Analysis:

Issue 1: Jurisdiction of Principal Commissioner under section 263
The Appellate Tribunal considered whether the Principal Commissioner of Income Tax could invoke jurisdiction under section 263 of the Income Tax Act when the Assessing Officer had failed to initiate penalty proceedings under section 271(1)(c) of the Act. The Tribunal observed that the Principal Commissioner's direction to initiate penalty proceedings without the Assessing Officer's action was not sustainable. Citing relevant case law, the Tribunal emphasized that in the absence of a finding by the Assessing Officer regarding concealment of income or inaccurate particulars, the Principal Commissioner could not direct penalty proceedings under section 271(1)(c) through a revisionary order.

Issue 2: Validity of direction to initiate penalty proceedings
The Tribunal examined the validity of the Principal Commissioner's direction to initiate penalty proceedings under section 271(1)(c) of the Act. It noted that the Assessing Officer, after failing to initiate penalty proceedings, submitted a proposal for revision under section 263. The Tribunal referred to legal precedents where it was held that the Principal Commissioner could not direct penalty proceedings without the Assessing Officer's satisfaction regarding concealment or inaccurate particulars. The Tribunal further emphasized that the Principal Commissioner's assumption of jurisdiction under section 263 in such cases was not appropriate.

Issue 3: Impact of failure to initiate penalty proceedings
The Tribunal addressed the impact of the Assessing Officer's failure to initiate penalty proceedings on the assessment order. It highlighted that the failure to record any satisfaction about concealment or inaccurate particulars of income by the Assessing Officer rendered the order erroneous and prejudicial to the revenue. The Tribunal quashed the Principal Commissioner's orders under section 263, emphasizing that the initiation of penalty proceedings by the Assessing Officer was a prerequisite, especially in cases where no satisfaction was recorded in the assessment order.

In conclusion, the Tribunal allowed the appeals for both assessment years, emphasizing the importance of the Assessing Officer's role in initiating penalty proceedings and the limitations on the Principal Commissioner's jurisdiction under section 263 in such circumstances.