9911796707
TMI Blog2016 (11) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... d requires no adjudication, therefore, all are dismissed. - I.T.A Nos. 736 & 737/Kol/2013 - - - Dated:- 27-5-2016 - Shri P.M. Jagtap , Accountant Member And Shri S. S Viswanethra Ravi, Judicial Member For the Appellant/assessee : Shri Amit Kumar, ACA, ld.AR For the Respondent/assessee: Shri Kalyan, ld.DR ORDER Shri S. S. Viswanethra Ravi, JM These appeals of the asessee arise out of the common order of the CIT(A)- Central-III, Kolkata in Appeal Nos. 25 26/CC-I/CIT(A)C-III/11-12/Kol dated 28-01-2013 for the assessment years 2006-07 2007-08 against the order of penalty levied u/s. 271(1) ( c) of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 2. The appellant assessee has initially raised the following common ground of appeal for both the assessment years under consideration:- 1. That the ld. CIT(A) erred in confirming penalty amounting to ₹ 23,56,670/- u/s. 271(1) ( c) of the Income Tax Act, 1961 @ 100% of the tax alleged to be sought to be evaded on the amount of additional income voluntarily disclosed by the assessee u/s. 132(4) and included in the return filed u/s. 153A of the Act. The penalty so levied is unjustified a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d being 27.10 carat) and valued by the departmental valuer at 'Rs.29,54,177/- was made. Further, during the course of operation of Locker No. 39 maintained by Shri Vimal Kumar Tulsyan and Smt. Nirmala Tulsyan with Punjab National Bank, Shastri Nagar, Dhanbad, 17 items of jewellery bearing Sl. Nos. 1 to 17 of net weight 1859.040 gm and valued by the departmental valuer at ₹ 21,58,1571- was made. Out of the total jewellery found, jewellery of net weight 331.50 (being item nos. BKT/05 and BKT/07) valued at ₹ 5,10,8701-has been owned up by the assessee and the same has been considered as application of funds out of his income disclosed u/s 132(4). The remaining jewellery items of net weight of gold 3367.70 gm and diamond of 27.10 carat have been found to form part of the jewellery disclosed by the assessee's HUF and other family members as per their Wealth Tax returns and stridhan received by Smt. Anamika Tulsyan at the time of her marriage. During the course of search and seizure operations conducted at the residential premises of the assessee, an inventory of silver utensils and articles weighing approximately 46.381 kg and valued by the departmental valuer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-, which is undisclosed income for the assessment year 2006-07 has been covered in the disclosure petition filed by Sri Vaibhav Tulsyan along with the source from which such undisclosed income was earned. It was also stated that the entire tax along with interest on the undisclosed income. He has also quoted various judgements of ITATs as well as High Courts. 6. The AO after examining and considering the various submissions of the assessee regarding imposing of penalty u/s. 271(1)(c) and imposed penalty @ ₹ 23,56,670/- for A.Y 2006-07 and ₹ 25,13,837/- for A.Y 2007-08. 7. Aggrieved, the assessee went in appeal before the CIT-(A). The CIT-(A) opined that the assessee had disclosed additional income for the assessment years 2006-07 and 2007-08 only to cover up and take care of the omissions and mistakes in the seized documents. The CIT(A) confirmed the impugned penalty by observing as under:- In the instant case search u/s. 132 was conducted on 27.02.2009 i.e after 01.06.2007. The appellant had admitted additional undisclosed income for the A.yrs 2006-07 and 2007-08 to cover up and take care of the omissions/mistakes in the seized documents. That means the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial available on record. The question before us is as to whether the penalty order passed by the AO and confirmed by the CIT(A) falls for our consideration in pursuance of the Judgment of the Hon ble Karnataka High Court supra. That on perusal of the said show cause notice dated 30-12-2010 issued u/s. 274 r.ws. 271(1)( c) of the Act purportedly issued to show cause why the penalty shall not be imposed, We find that irrelevant portion of such notice was not struck out by the AO. Therefore, the said notice is not clear whether it was issued for furnishing of inaccurate particulars of income or concealment of particulars of such income. We find that the assessee as relied on the order dated 06-11-2015 in the case of Suvaprassanna Bhattacharya Vs. ACIT, Kolkata in ITA No. 1303/Kol/2010 for the AY 2006-07 is applicable to the case on hand. The relevant findings of the said tribunal order is reproduced herein below for better understanding:- 8. The next argument that the show cause notice u/s. 274 of the Act which is in a printed form does not strike out as to whether the penalty is sought to be levied on the for furnishing inaccurate particulars of income or concealing parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such proceedings and should have full opportunity to meet the case of the Department and show that the conditions stipulated in Section 271(1)(c) do not exist as such he is not liable to pay penalty. The practice of the Department sending a printed farm where all the ground mentioned in Section 271 are mentioned would not satisfy requirement of law when the consequences of the assessee not rebutting the initial presumption is serious in nature and he had to pay penalty from 100% to 300% of the tax liability. As the said provisions have to be held to be strictly construed, notice issued under Section 274 should satisfy the grounds which he has to meet specifically. Otherwise, principles of natural justice is offended if the show cause notice is vague. On the basis of such proceedings, no penalty could be imposed on the assessee. 60. Clause (c) deals with two specific offences, that is to say, concealing particulars of income or furnishing inaccurate particulars of income. No doubt, the facts of some cases may attract both the offences and in some cases there may be overlapping of the two offences but in such cases the initiation of the penalty proceedings also must be for both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of MANU ENGINEERING reported in 122 ITR 306 and the Delhi High Court in the case of VIRGO MARKETING reported in 171 Taxman 156, has held that levy of penalty has to be clear as to the limb for which it is levied and the position being unclear penalty is not sustainable. Therefore, when the Assessing Officer proposes to invoke the first limb being concealment, then the notice has to be appropriately marked. Similar is the case for furnishing inaccurate particulars of income. The standard pro forma without striking of the relevant clauses will lead to an inference as to non-application of mind. The final conclusion of the Hon ble Court was as follows:- 63. In the light of what is stated above, what emerges is as under: a) Penalty under Section 271(1)(c) is a civil liability. b) Mens rea is not an essential element for imposing penalty for breach of civil obligations or liabilities. c) Willful concealment is not an essential ingredient for attracting civil liability. d) Existence of conditions stipulated in Section 271(1)(c) is a sine qua non for initiation of penalty proceedings under Section 271. e) The existence of such condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not the Assessing Authority. p) Notice under Section 274 of the Act should specifically state the grounds mentioned in Section 271(1)(c), i.e., whether it is for concealment of income or for furnishing of incorrect particulars of income q) Sending printed form where all the ground mentioned in Section 271 are mentioned would not satisfy requirement of law. r) The assessee should know the grounds which he has to meet specifically. Otherwise, principles of natural justice is offended. On the basis of such proceedings, no penalty could be imposed to the assessee. s) Taking up of penalty proceedings on one limb and finding the assessee guilty of another limb is bad in law. t) The penalty proceedings are distinct from the assessment proceedings. The proceedings for imposition of penalty though emanate from proceedings of assessment, it is independent and separate aspect of the proceedings. u) The findings recorded in the assessment proceedings in so far as concealment of income and furnishing of incorrect particulars would not operate as res judicata in the penalty proceedings. It is open to the assessee to contest the said proceedings on mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
