|COURT:||Bombay High Court (Goa Bench)|
|CORAM:||M. S. Sonak J, Nutan D. Sardesai J|
|CATCH WORDS:||concealment Penalty, penalty|
|DATE:||November 11, 2019 (Date of pronouncement)|
|DATE:||November 30, 2019 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|Levy of penalty u/s 271(1)(c) is not valid if (i) there is no record of satisfaction by the AO that there was any concealment of income or that any inaccurate particulars were furnished by the assessee or (ii) If the notice is issued in the printed form and the inapplicable portions are not struck off (Samson Perinchery 392 ITR 4 (Bom) & New Era Sova Mine [2019 SCC OnLine Bom 1032] followed, Mak Data 358 ITR 593 (SC) distinguished).|
IN THE HIGH COURT OF BOMBAY AT GOA
TAX APPEAL NO. 24 OF 2019
THE PRINCIPAL COMMISSIONER OF
INCOME TAX (CENTRAL), BENGALURU … Appellant
GOA COASTAL RESORTS AND RECREATION
PVT. LTD. … Respondent
Ms. Amira Abdul Razaq, Advocate for the appellant.
Shri P. Rao, Advocate for the respondent.
Coram:- M. S. SONAK &
NUTAN D. SARDESSAI, JJ.
Date:- 11th November, 2019
ORAL ORDER : (Per M.S. Sonak,J)
Heard Ms Razaq, learned Advocate for the appellant and Shri.
Rao, learned Advocate for the respondent No.2.
2. Ms. Razaq, learned Advocate for the appellant urges
admission of this appeal on the following substantial questions of
2 TXA 24 of 2019
i) Whether on the facts and in the circumstances of
the case, the Tribunal is right in law and fact, in
deleting the penalty levied u/s. 271(1) (c) of the
Income Tax Act, 1961?
3. Ms Razaq, learned Advocate submits that in this case the
revised returns filed by the respondents indicated that the
disclosures were made only by piecemeal. Relying upon Mak Data(P.) Ltd v/s. Commissioner of Income Tax 1, she submits that such
disclosure does not relieve the assessee of the requirement of paying
penalty. He submits that the assessment order in the present case
makes reference to concealment and/or inaccurate particulars. In
this view of the matter, she submits that the substantial questions of
law as aforesaid will be arises and the view taken by the
Commissioner (Appeals) as well as the ITAT in relation the deletion
of penalty, warrants interference.
4. Mr Rao, learned Advocate for the assessee points out that
there is absolutely no finding as regards concealment or furnishing
of inaccurate particulars. He further points out that in the notice
issued to the assessee on 30/09/2016, the Deputy Commissioner
had not even bothered to strike down the relevant portion of the
printed form in order to indicate whether the satisfaction is based
1 [(2013) 38 Taxman.com 448 (SC)]
3 TXA 24 of 2019
upon the concealment of particulars or furnishing of inaccurate
particulars. He relies on Commissioner of Income Tax-11 v/s. ShriSamson Perinchery2 and Principal Commissioner of Income Tax v/s.
New Era Sova Mine3 to submit that on the basis of such a defective
notice, award of penalty can never be sustained.
5. We have carefully examined the record as well as duly
considered the rival contentions. Both the Commissioner (Appeals)
as well as the ITAT have categorically held that in the present case,
there is no record of satisfaction by the Assessing Officer that there
was any concealment of income or that any inaccurate particulars
were furnished by the assessee. This being a sine qua non for
initiation of penalty proceedings, in the absence of such petition,
the two authorities have quite correctly ordered the dropping of
penalty proceedings against the petitioner.
6. Besides, we note that the Division Bench of this Court in
Samson(supra) as well as in New Era Sova Mine (supra) has held
that the notice which is issued to the assessee must indicate whether
the Assessing Officer is satisfied that the case of the assessee
2 [(017) 392 ITR 4]
3 [2019 SCC OnLine Bom 1032]
4 TXA 24 of 2019
involves concealment of particulars of income or furnishing of
inaccurate particulars of income or both, with clarity. If the notice is
issued in the printed form, then, the necessary portions which are
not applicable are required to be struck off, so as to indicate with
clarity the nature of the satisfaction recorded. In both Samson
Perinchery and New Era Sova Mine (supra), the notices issued had
not struck of the portion which were inapplicable. From this, the
Division Bench concluded that there was no proper record of
satisfaction or proper application of mind in matter of initiation of
7. In the present case, as well if the notice dated 30/09/16 (at
page 33) is perused, it is apparent that the relevant portions have
not been struck off. This coupled with the fact adverted to in
paragraph (5) of this order, leaves no ground for interference with
the impugned order. The impugned order are quite consistent by
the law laid down in the case of Samson Perinchery and New Era
Sova Mine(supra) and therefore, warrant no interference.
8. The contention based upon MAK Data (P.) Ltd.(supra) also
does not appeal to us in the peculiar facts of the present case. The
notice in the present case is itself is defective and further, there is no
5 TXA 24 of 2019
finding or satisfaction recorded in relation to concealment or
furnishing of inaccurate particulars.
9. For the aforesaid reasons, we hold that no substantial
questions of law arises in this appeal. Consequently, this appeal is
NUTAN D. SARDESSAI, J. M. S. SONAK, J.