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30-12-2019, Coast Line Shipping (India), Section 271(1)(c), Tribunal Mumbai

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8 months 3 weeks ago #11903 by amit
Section - 271(1)(c), 274, 292B, 147, 148
Order Date - 30-12-2019
Favouring - Assessee
Court - Tribunal Mumbai
Appellant - Coast Line Shipping (India) Pvt. Ltd.
Respondent - DCIT
Justice - C.N. PRASAD JM & G. MANJUNATHA AM
Citation - 120Taxpundit24
Appeal No. - ITA.NOs. 4941, 4942 & 4943/MUM/2018
Asstt. Year - 2013-14, 2014-15 & 2015-16

Order

PER : C.N. PRASAD (JM)

1. These three appeals are filed by the assessee against different orders of the Learned Commissioner of Income Tax (Appeals) – 53, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 21.05.2018 for the A.Y.2013-14, 2014-15 & 2015-16.

TA.No. 4941 & 4942/Mum/2018 (A.Ys. 2013-14 & A.Y. 2014-15):

2. In both these appeals assessee challenged the order of the Ld.CIT(A) in sustaining levy of penalty on merits as well as on technical grounds. Additional grounds were also raised by the assessee raising technical ground stating that penalty U/s. 271(1)(c) of the Act was levied without specifying specific limb of section. 271(1)(c) for violation of which Assessing Officer intents to impose penalty by striking off the inappropriate words in the show cause notice Since additional ground raised by the assessee is purely a legal ground, it is submitted that the same be admitted and adjudicated.

3. Reliance is placed on the following decisions:

(a). National Therma Power Co. Ltd [229 ITR 383 (SC)]
(b). Dilip N. Shroff v Joint CIT [291 ITR 519 (SC)]
(c). SSA’s Emerald Meadows [2016] 73 taxmann.com (Kar) confirmed by the Supreme Court in [2016] 73 taxmann.com 248 (SC) / [2016] 242 Taxman 180 (SC)
(d). Samson Perinchery [2017] 88 taxmann.com 413 (Bom)

On hearing both the parties, we admit the additional ground since the ground taken is only a legal ground.

4. Ld. Counsel for the assessee referring to the notice issued u/s. 274 r.w.s 271(1)(c) of the Act which are placed at Page Nos. 109 and 69 of the Paper Book, submitted that the Assessing Officer is not clear as to the charge for which the penalty is initiated i.e. either for concealment of income or for furnishing inaccurate particulars. Referring to the notice Ld. Counsel for the assessee submitted that the inappropriate limb in the notice was not strike off. Ld. Counsel for the assessee referring to the assessment order submitted that the Assessing Officer stated that penalty proceedings were initiated for furnishing inaccurate particulars and concealment of income. Referring to the notice and Penalty Order, Ld.Counsel for the assessee submitted that Assessing Officer did not specify charge for which the penalty proceedings were initiated but in the penalty order penalty was levied for furnishing inaccurate particulars of income and for concealment of income within the meaning of the section 271(1)(c) of the Act and therefore, the initiation of penalty proceedings itself is improper and not valid. Ld. Counsel for the assessee submitted that there is complete non-application of mind by the Assessing Officer in initiating penalty proceedings and therefore, levy of penalty is illegal, void, bad in law, initiated by non-application of mind and is without jurisdiction as the penalty notice issued by the Assessing Officer does not strike off the irrelevant portion thereon.

5. Reliance was placed on the following decisions: -

(i) Samson Perinchery [2017] 88 taxmann.com 413 (Bom)
(ii) Manjunath Cotton & Ginning Factory [359 ITR 565 (Kar)]
(iii) ACIT v. Shri Haresh S. Jhaveir in ITA.No. 2561/Mum/2017 dated 28.09.2018
(iv) M/s. Wadhwa Estate & Developers India Pvt. Ltd., v. ACIT in ITA.No. 2155/Mum/2016 dated 02.02.2017
(v) Dr. Sarita Milind Davre v. ACIT in ITA.No. 2187/Mum/2014 dated 12.12.2016.
(vi) Dilip N. Shroff v. Joint CIT [291 ITR 519 (SC)]
(vii) CIT v. Samson Perinchery [2017] 392 ITR 4 (BOM)
(viii) Pr. CIT v. Goa coastal Resorts and Recreation Pvt. Ltd., [Tax Appeal No. 24 of 2019, High Court of Bombay at Goa, dated 11.11.2019.
(ix) Pr.CIT v. New Era Sova Mine [Tax Appeal No. 70 of 2018, High Court of Bombay at Goa dated 18.06.2019]
(x) Pr. CIT v. Goa Dourado Promotions Pvt. Ltd., [Tax Appeal No. 18 of 2019, High Court of Bombay at Goa, dated 26.11.2019
(xi) ACIT v. Goa Dourado Promotions Pvt. Ltd [ITA.No. 276/PAN/2017 dated 01.01.2019]
(xii) ACIT v. Goa Dourado Promotions Pvt. Ltd [ITA.No. 277/PAN/2017 dated 03.01.2019]
(xiii) M/s. G.L Pangam & Associates v. ITO [ITA.No. 5860/Mum/2018 dated 03.12.2019]

6. Ld. DR vehemently supported the order of the Ld.CIT(A) and also relied on the decision of the Hon'ble Madras High Court in the case of Sundaram Finance wherein it was held that even assuming that there was defect in notice it had caused no prejudice to assessee as the assessee understood what was the purpose of notice. Ld. DR submitted that SLP filed by the assessee was also dismissed by the Hon'ble Supreme Court reported in 259 Taxman 220.

7. We have heard the rival submissions, perused the orders of the Authorities below, notice issued u/s. 274 r.w.s 271(1)(c) of the Act for initiation of penalty proceedings in both the assessment years i.e. A.Y.2013-14 and A.Y. 2014-15. We observe that Assessing Officer did

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