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TMI Blog2017 (8) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... 247 and 248/Ahd/2013 - - - Dated:- 30-3-2017 - Rajpal Yadav (Judicial Member) And Manish Borad (Accountant Member) For the Appellant : Pritesh Shah, Authorised Representative For the Respondent : Prasoon Kabra, Senior Departmental Representative ORDER 1. These four appeals of the same assessee for the assessment years 2001- 02 to 2004-05 are directed against separate orders of the Commissioner of Income-tax (Appeals)-I, Ahmedabad of dated April 10, 2013, arising out of orders under section 271(1)(c) of the Income-tax Act, 1961 (hereinafter referred to as the Act ), framed on March 28, 2012 by the Assistant Commissioner of Income-tax, Central Circle-1(4), Ahmedabad. As all these appeals relate to the same assessee raising a common issue against the learned Commissioner of Income-tax (Appeals)'s order confirming penalty under section 271(1)(c) of the Act, they were heard together and are being disposed of by this common order for the sake of convenience. 2. Solitary grievance of the assessee in all these appeals is against penalty under section 271(1)(c) of the Act imposed for the assessment years 2001- 02 to 2004-05 at ₹ 57,691, ₹ 40,357, &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LP CC No. 11485 of 2016 (ii) The hon'ble Karnataka High Court in the case of CIT v. SSA's Emerald Meadows (I. T. A. No. 380 of 2015) (iii) The hon'ble Bombay High Court in the case of CIT v. Samson Perinchery [2017] 392 ITR 4 (Bom) in (I. T. A. Nos. 1154, 953, 1097, 1226 of 2014) (iv) The Income-tax Appellate Tribunal Mumbai in the case of Sam son Perinchery v. Asst. CIT (I. T. A. Nos. 4625 to 4630/Mum/2013 dated October 11, 2013). 6. On the other hand, the learned Departmental representative strongly contended that this legal ground taken up by the assessee should not be entertained as it was never challenged before the Commissioner of Income- tax (Appeals) and even in the grounds of appeal filed before the Tribunal. 7. We have heard the rival contentions and perused the record placed before us. The solitary grievance for all the four appeals by the assessee is against the legality of notices issued under section 274 read with section 271 of the Act. So far as the contention of the learned Departmental representative is concerned, challenging the admission of this legal ground before the Tribunal, we are of the view that it is a well settled principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der : 'Assessed under section 143(3) of the Income-tax Act, 1961 at a total income of ₹ 31,98,460. Charge interest under sections 234B and 234C as applicable. Give credit for taxes paid after due verification. Issue demand noticed and challan accordingly issue show-cause notice for initiating penalty under section 271(1)(c) of the Income-tax Act, 1961 for furnishing inaccurate particulars of the income. This order is passed after getting approval from Addl. CIT, Range-4, Central Circle-II, Mumbai vide his letter No. Addl CIT C.R.4/Approval-153D/2010-11, dated December 29, 2010.' 11. From the above, the penalties were to be initiated either for 'furnishing inaccurate particulars of income' and not for 'concealment of income'. However, the Assessing Officer is under obligation to specify the same and should not leave the scope for imaginations and surmises. At the end, we find that the penalty was actually levied 'for concealment of (particulars) of income'. which is evident from para graph 4 of the assessment order which reads as under : '4. From the above, I am satisfied that the assessee has concealed the particulars of inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 form here all the ground mentioned in section 271 are mentioned would not satisfy requirement of law when the consequences of the assessee not rebut ting the initial presumption is serious in nature and he had to pay penalty from 100 per cent. to 300 per cent. 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, the 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. 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 the offences. But drawing up penalty proceedings for one offence an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in [1980] 122 ITR 306 (Guj) and the Delhi High Court in the case of CIT v. Virgo Marketing P. Ltd. reported in [2008] 171 Taxman 156 (Delhi), 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 proforma without striking of the relevant clauses will lead to an inference as to non-application of mind'. 13. From the above, it is clear that the penalty should be clear as to the limb for which it is levied and the position being unclear here the penalty is not sustainable. Therefore, considering the same, we are of the opinion that the ground raised by the assessee should be allowed on technical grounds. Accordingly, adjudication of the penalties on merits become an academic exercise. Therefore, the grounds raised in all the six assessment years are allowed. We further observe that the above decision of the co-ordinate Bench, Mumbai has been confirmed by the hon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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