Madhumita Roy ORDER
Madhumita Roy, Member (J)
1. The instant appeal filed by the assessee is directed against the order dated 08.06.2017 passed by the Commissioner of Income Tax (Appeals)-8, Ahmedabad arising out of the penalty order dated 08.05.2015 passed by the ITO, Ward-4(1)(1), Ahmedabad under Section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred as to "the Act") for A.Y. 2012-13.
2. At the time of hearing of the instant appeal the Ld. Counsel appearing for the assessee submitted before us that the penalty proceeding does not fulfill the criteria laid down u/s. 271(1)(c) of the Act. Furthermore, the Learned AO while imposing penalty mentioned both the limbs being furnishing of inaccurate particulars of income and concealment of income, which is vague and ambiguous too and hence the penalty is invalid and liable to be quashed as urged by the Ld. AR. The Learned AO since neither specified the alleged guilt committed by the assessee by furnishing of inaccurate particulars of income or concealment of income the same is nothing but non application of mind as submitted by the Learned AR. In support of his argument, Learned AR relied upon the judgment passed by the Hon'ble Jurisdictional High Court in the matter of Snita Transport Pvt. Ltd. vs. ACIT reported in 42 taxmann.com 54.
The Learned AR also relied upon the judgment passed by the Gujarat High Court in the case of CIT vs. Jyoti Ltd. reported in [2013] 34 taxmann.com 65 (Gujarat) and also relied upon the order passed by the Hon'ble Tribunal, Ahmedabad Benches in the case of Dharmesh Dhulabhai Prajapati vs. ITO in ITA No. 1570/Ahd/2017 for A.Y. 2011-12 and also the case of Smt. Ushaben Atulbhai Shah in ITA No. 197/Ahd/2017 for A.Y. 2012-13.
The Learned CIT(A) while confirming the order levying penalty alleged on account of both counts; again failed to apply his mind towards the legal bars imposed by different courts as submitted by the Learned AR. He, therefore, prays for quashing of the order of penalty before us.
3. On the other hand, Ld. DR relied upon the orders passed by the authorities below.
4. We have heard the respective parties, we have also perused the relevant materials available on record.
5. A short point involved in this matter as to whether the penalty can be imposed without specifying the guilt either for concealment of income or for furnishing of inaccurate particulars of income in the present facts and circumstances of the case. The penalty has been levied on 08.05.2015 by the ITO for furnishing of inaccurate particulars of income thereby concealment of income of Rs. 5,75,346/- which has further been confirmed by the Ld. CIT(A). Hence, admittedly we do not find any specific allegation made against the assessee. It appears that the Ld. ITO imposed the penalty of Rs. 1,77,782/-upon being satisfied on both the limbs of guilt committed by the assessee being concealment of income and furnishing of inaccurate particulars of income under section 271(1)(c) of the Act. But Sec. 271(1)(c) puts the bar in initiating as well as levying penalty on both the limbs by the revenue and restricted initiation and imposition of penalty on the specific guilt committed by the assessee, either for concealment on income or for furnishing of inaccurate particulars of income.
6. We have considered the judgment passed by the Jurisdictional High Court in the matter of Snita Transport Pvt. Ltd. vs. ACIT, reported in 42 taxmann.com 54 from which it appears that penalty cannot be imposed without mentioning the specific charge. The relevant extract of the order is reproduced below:
"9. Regarding the contention that the Assessing Officer was ambivalent regarding under which head the penalty was being imposed namely for concealing the particulars of income or furnishing inaccurate particulars, we may record that though in the assessment order the Assessing Officer did order initiation of penalty on both counts, in the ultimate order of penalty that he passed, he clearly held that levy of penalty is sustained in view of the fact that the assessee had concealed the particulars of income. Thus insofar as final order of penalty was concerned, the Assessing Officer was clear and penalty was imposed for concealing particulars of income. In light of this, we may peruse the decision of this Court in case of Manu Engineering Works (supra). In the said decision, the Division Bench came to the conclusion that language of "and/or" may be proper in issuing a notice for penalty, but it was incumbent upon the Assessing Authority to come to a positive finding as to whether there was concealment of income by the assessee or whether any inaccurate particulars of such income had been furnished by them. If no such clear cut finding is reached by the authority, penalty cannot be levied. It was a case in which in final conclusion the authority had recorded that "I am of the opinion that it will have to be said that the assessee had concealed its income and/or that it had furnished inaccurate particulars of such income." It was in this respect the Bench observed that "Now the language of "and/or" may be proper in issuing a notice as to penalty order or framing of charge in a criminal case or a quasi-criminal case, but it was incumbent upon the IAC to come to a positive finding as to whether there was concealment of income by the assessee or whether any inaccurate particulars of such income had been furnished by the assessee. No such clear cut finding was reached by the IAC and, on that ground alone, the order of penalty passed by the IAC was liable to be struck down."
Thus, it appears that it was incumbent upon the Assessing Authority to come to a definite finding as to whether there was concealment of income by the assessee or whether any inaccurate particulars of such income had been furnished by them. If no such clear cut finding is reached by the authority, penalty cannot be levied.
The principles laid down by the Hon'ble Jurisdictional High Court in the above case are squarely applicable to the facts of the case in hand. At the cost of repetition we observe that the AO has not mentioned the specific charge/guilt in its penalty orders whether it was levied for concealment of income or for furnishing inaccurate particulars of income. Therefore, in our considered view, the penalty levied by the AO and confirmed by the Learned CIT (A) is not sustainable in the eye of law. The penalty, therefore, is deleted. Hence, the ground of appeal of the assessee is allowed.
7. In the result, the appeal preferred by the assessee is allowed.
This Order pronounced in Open Court on 28/02/2022.
© Manupatra Information Solutions Pvt. Ltd.