ORDER
Per Rajesh Kumar, Accountant Member:-
Both these appeals are filed by the assessee against the identical orders of the ld. Commissioner of Income Tax (Appeals)-21, Kolkata, dt. 27th August, 2018, confirming the penalty levied by the Assessing Officer u/s 271AAB of the Income Tax Act, 1961 (hereinafter 'the Act') for the Assessment Years 2013-14 & 2014-15. For the sake of convenience we are taking up assessment year 2013-14 first.
2. The assessee has raised the following grounds of appeal for the Assessment Year 2013-14:- "1. That the order passed by the Ld. CIT (Appeals) - 21, Kolkata, u/s 250 confirming the additions and disallowances made by learned assessing officer is contrary to the law and facts of the case.
2. That the Hon'ble Commissioner of Income Tax (A) 21, Kolkata erred in law as well as on facts of the case by not deleted the penalty-imposed u/s 271AAB on the ground the ld. Assessing Officer has failed to specify in the penalty notice u/s 271AAB r/w 274 that as to violation for which limb of section 271AAB, penalty proceedings have been initiated.
3. That the Hon'ble Commissioner of Income Tax (A) 21, Kolkata erred in law as well as on facts of the case by confirming the penalty levied u/s 271AAB being 10% of total income declared by the appellant in its disclosure petition.
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M/s. Vijayshree Autocom Ltd. 4. That the Hon'ble Commissioner of Income Tax (A) 21, Kolkata erred in law as well as on facts of the case by not deleting the penalty levied u/s 271 AAB in toto on the ground that appellant had time to finalize the accounts of the relevant period and record the income found unrecorded at the time of search proceedings and the so called undisclosed income was admitted in the disclosure petition for the purpose of buying peace and avoid unnecessary litigation .
5. That the appellant craves leave to add/or amend any ground of this appeal."
3. As the grounds raised for the Assessment Year 2014-15 are identical we do not extract the same for the sake of brevity.
4. In Ground Nos. 1 & 2, the assessee challenges the penalty notice issued u/s 271AAB r.w.s. 274 of the Act as being invalid and void ab initio on the ground that, the Assessing Officer has failed to specifically point out the clause on which the penalty was proposed to be levied.
5. Facts in brief are that a search action u/s 132(1) of the Act was conducted on 11/04/2013 on the assessee. The assessee is engaged in the business of manufacturing of automobile components, tea, engineering, marketing services, equity & commodities broking and trading etc. During the course of assessment proceedings, a statement u/s 132(4) of the Act was recorded of the director of the assessee company Shri Devendra Kumar Mantri who disclosed and offered unaccounted income to the tune of Rs.5,09,58,950/- in the hands of the assessee company under the head "commodity speculation income" and "income from other sources" and accordingly filed the return of income u/s 153A of the Act . The assessment was completed u/s 143(3) r.w.s. 153A of the Act on 30/03/0216 and the amount of Rs.5,09,58,950/- was treated as undisclosed income. Penalty u/s 271AAB of the Act was initiated on the undisclosed income admitted during the course of search at the time of recording of statement u/s 132(4) of the Act and accordingly notice u/s 274 r.w.s. 271AAB of the Act was served on the assessee on 31/03/2016. The said show cause notice was replied by the assessee .Finally after considering the submissions of the assessee in response to that notice, the Assessing Officer levied a penalty of Rs.1,52,87,685/- being 30% on the amount of
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M/s. Vijayshree Autocom Ltd. Rs.5,09,58,950/- surrendered during the course of search as undisclosed income vide order dt. 28/09/2016 passed u/s 271AAB of the Act.
5. The matter was carried to the ld. CIT(A) and the ld. CIT(A) partly allowed the appeal of the assessee by restricting the amount of penalty to 10% as against the penalty imposed by the Assessing Officer at 30% of the undisclosed amount by observing and holding as under:- "12. In view of the above provisions the appellant was required to satisfy the following conditions so as to ensure that minimum penalty @ 10% is levied under Section 271AAB of the Act.
(a) Assessee must have admitted the undisclosed income in statement recorded u/s 132(4);
(b) Assessee specifies & substantiates the manner in which such undisclosed income was derived
(c) Pays Tax & Interest on such undisclosed income before the specified date;
(d) Files the ROI for specified previous year declaring such undisclosed income therein
13. In the facts of the present case search operations were conducted on 11.04.2013 and the Director of the appellant in his statement recorded u/s 132(4) on 12.04.2013 had admitted the undisclosed income during course of search and survey operation. This fact also been admitted by the Ld. AO in the assessment as well as the impugned penalty order. Accordingly condition (a) is satisfied. It is also not in dispute that the appellant has discharged taxes along with interest before the specified date and that such income was disclosed in the return of income filed for the relevant year. In the circumstances even clause (c) & (d) stands satisfied. The only dispute between the appellant and the Ld. AO is
regarding clause (b) as according to Ld. AO the appellant did not specify the manner in which such income was derived. I however find that allegation of the Ld. AO to be self-contradictory. By AO's own admission in the assessment order as well as the penalty order, the entries in the loose documents denoted the speculative income derived by the appellant in commodity dealings. The Ld. AR of the appellant has further demonstrated that the Ld. AO never required the appellant to explain the manner of deriving such income in the assessment or the penalty proceedings which further proved that the Ld. AO was satisfied that the income was derived from commodity dealings. On these facts & circumstances, I am of the considered view that the manner in which the income was derived stood evidently specified as well as substantiated. I therefore do not see any reason for the Ld. AO to allege that the appellant had failed to specify & substantiate the manner of deriving such income. For the reasons as aforesaid, I am of the considered view that the clause (b) also stood satisfied and in that view of the matter appellant had fulfilled all the conditions to fall within clause (a) of Section 271AAB of the Act. The Ld. AO is
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M/s. Vijayshree Autocom Ltd. therefore directed to restrict the penalty u/s 271AAB to 10% of the undisclosed income, which works out to Rs.50,95,895/-. The balance amount of Rs.1,01,91,790/- is therefore deleted. In the result, the appeal of the appellant is "partly allowed".
6. After hearing the rival parties and perusing the material available on record including the notice issued u/s 271AAB r.w.s. 274 of the Act dt. 31/03/2016, we find that the notice has been issue in a mechanical manner without specifying one of the three clauses under which the penalty was proposed to be levied. The ld. A/R before us challenged the very initiation of penalty proceedings u/s 271AAB as invalid and void ab initio on the ground that the initiation is itself by an invalid notice issued by the Assessing Officer. The ld. A/R submitted that the issuing a mechanical notice without application of mind is a substantive and patent error of law which goes to the root of the matter and is not curable at a later stage. The ld. A/R, therefore, prayed that the order of the ld. CIT(A) confirming the penalty deduction to the extent of 10% may kindly be set aside and the penalty order passed by the Assessing Officer u/s 271AAB may kindly be quashed as the very foundation is suffering from vices invalid notice. The ld. A/R in defense of his arguments relied heavily on the decision of the Hon'ble Madras High Court in the case PCIT vs. Shri R. Elangovan in Tax Case Appeal Nos. 770 & 771 and CMP No. 18581 of 2018 dt. 30/03/2021. The ld. D/R on the other hand, relied heavily on the order of the ld. CIT(A) by stating that the provisions of Section 271(1)(c) of the Act are quite different from provisions of Section 271AAB as the two penal sections deal with distinct and different issues altogether. The ld. D/R submitted before us that the provisions of Section 271(1)(c) of the Act deals with the imposition of penalty on the particular charge whereas the provisions u/s 271AAB deal with the quantum of penalty. The ld. D/R, therefore, submitted that the order of the ld. CIT(A) may kindly be sustained.
7. We have perused the decision cited before us in the case of PCIT vs. Shri R. Elangovan (supra ) and find that under similar facts the Hon'ble court has quashed the penalty order on the ground that it is based upon invalid penalty notice issued u/s 271AAB of the Act. The operative part is extracted below:
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M/s. Vijayshree Autocom Ltd. "14. In our considered view, the Tribunal is fully right in vacating the penalty on the ground that the notice was defective. The provisions of the Act have clearly laid down the procedure to be followed and adhered to while imposing the penalty. The proposal for such penalty proceedings was separately initiated upon completion of assessment and there may be cases where the assessee would not even contest the order of
assessment. But, that would not preclude the assessee from challenging the penalty proceedings, as penalty proceedings are independent and the procedure required to be followed cannot be dispensed with. 15. As rightly pointed out by the learned counsel appearing for the assessee, Section 271AAB of the Act, which deals with penalty consists of three
contingencies. Therefore, the Assessing Officer should point out to the assessee as to under which of the three clauses, he chooses
https://www.mhc.tn.gov.in/judis/ TCA.Nos.770 & 771 of 2018 to proceed
against the assessee so as to enable the assessee to give an effective reply. Since the same has not been mentioned, the assessee has been denied reasonable
opportunity to put forth their submissions. The Tribunal, in paragraph 5 of the impugned order, has verbatim reproduced the penalty notice and we find that
the notice is absolutely vague and none of the irrelevant portions had been
struck off nor the relevant portions had been marked or indicated. Hence, the
Tribunal is right in observing that the penalty could not have been levied based on such defective notice and more particularly, when the assessee has been
strenuously canvassing the jurisdictional issue from the inception.
16. In so far as the decision of the Allahabad High Court in the case of Sandeep Chandak is concerned, the factual position is slightly different. This decision is for the principle that where the assessee, in the course of search, makes a statement, in which, he admits the undisclosed income and specifies the manner, in which, such income has been derived, then the provisions of Section 271AAB of the Act would automatically get attracted. There can be no quarrel over this proposition. But, once the provisions get attracted, it is incumbent on the part of the Assessing Officer to specify as to under which clause in https://www.mhc.tn.gov.in/judis/ TCA.Nos.770 & 771 of 2018 Section 271AAB(1) of the Act, he intends to proceed against the assessee. In the instant case, in the absence of such material in the penalty notice, it has to be held that the notice is defective.
17. The decisions of the Karnataka High Court in the cases of Manjunatha Cotton and Ginning Factory and SSA's Emerald Meadows and the decision of this Court in the case of Babuji Jacob clearly support our above conclusion. For all the above reasons, we find no grounds to interfere with the common order passed by the Tribunal.
9. As the facts of the case before us are materially the same, we, therefore respectfully following the judgment of the Hon'ble Madras High Court in the case of PCIT
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M/s. Vijayshree Autocom Ltd. vs. Shri R. Elangovan (supra), hold that the penalty order passed by the Assessing Officer is invalid and is accordingly quashed. The appeals of the assessee are allowed on legal issue.
10. The other issues raised on merits by the assessee are rendered academic in
nature and, therefore, dismissed as such and are left open to be decided in future if need arises for the same.
11. In the result, both the appeals of the assessee are allowed. Kolkata, the 28 th day of March, 2022.
Sd/- Sd/-
[Sanjay Garg] [Rajesh Kumar]
Judicial Member Accountant Member Dated: 28.03.2022
{SC SPS}
Copy of the order forwarded to:
1. M/s. Vijayshree Autocom Ltd Continental Chambers 15A, Hemant Basu Sarani
Kolkata - 700001
2. Deputy Commissioner of Income Tax, Central Circle-4(3), Kolkata 3. CIT(A)-
4. CIT- ,
5. CIT(DR), Kolkata Benches, Kolkata. True copy
By order
Assistant Registrar
ITAT, Kolkata Benches
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M/s. Vijayshree Autocom Ltd. 1. Date of dictation- 03/03/2022
2. Date on which the typed draft is placed before the Dictating Member:04/03/2022 Other member
3. Date on which the approved draft comes to the Sr.P.S./P.S. -
4. Date on which the fair order is placed before the Dictating Member for Pronouncement
5. Date on which the file goes to the Bench Clerk
6. Date on which the file goes to the Head Clerk…………………………….
7. The date on which the file goes to the Assistant Registrar for signature on the order…………………
8. Date of Despatch of the Order……………….…