IN THE HIGH COURT OF KARNATAKA, BENGALURU PRESENT THE HON BLE MR.JUSTICE JAYANT PATEL AND THE HON BLE MR.JUSTICE ARAVIND KUMAR

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1 1 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 21 ST DAY OF SEPTEMBER 2016 PRESENT THE HON BLE MR.JUSTICE JAYANT PATEL AND THE HON BLE MR.JUSTICE ARAVIND KUMAR BETWEEN: ITA NOS.251/2016 & 390/2016 (T-IT) SHRI MUNINAGA REDDY AGED ABOUT 65 YEARS S/O SRI. MUNISWAMY REDDY NO.45, 3 RD B MAIN 4 TH CROSS, 3 RD BLOCK KALYAN NAGAR BANGALORE APPELLANT (BY SRI.P. DINESH FOR SRI. S. PARTHASARATHI, ADVS.) AND: THE ASST. COMMISSIONER OF INCOME TAX CIRCLE 6(1) INCOME TAX OFFICES ROOM NO.732, BMTC BUILDING 80 FT. ROAD, 6 TH BLOCK KORAMANGALA BANGALORE RESPONDENT (BY SRI.K.V. ARAVIND, ADVOCATE) THESE APPEALS ARE FILED UNDER SECTION 260-A OF INCOME TAX ACT, 1961, ARISING OUT OF THE ORDER DATED PASSED IN M.P/M.A.NO.62/BANG/2015

2 2 AND DATED IN ITA NO.859/BANG/2012, FOR THE ASSESSMENT YEAR THESE APPEALS COMING ON FOR ORDERS THIS DAY, JAYANT PATEL J, DELIVERED THE FOLLOWING : JUDGMENT Appellant assessee has preferred the present appeal. However, learned counsel appearing for the appellant after some arguments did not press question Nos.1 and 2 and hence, only question No.3 is pressed, which reads as under: Whether in law, the ITAT is justified in confirming the levy of penalty when, admittedly the notice of the Respondent u/s.271(1)(c) of the Act dated was clearly contrary to the decision of this Hon ble Court reported in CIT vs. Manjunatha Cotton and Ginning Factory (2013) 359 ITR 565 (Kar.)? 2. We have heard Mr. P. Dinesha, learned counsel appearing for the appellant assessee as well as Mr.K.V.Aravind, learned counsel appearing for the

3 3 respondent revenue for final disposal of the appeal. Hence, appeal is admitted and finally heard. 3. The only aspect to be considered in the present appeal is the order for imposition of penalty under Section 271 (1)(c) of the Act and whether such penalty could survive in view of the decision of this Court in case of COMMISSIONER OF INCOME-TAX AND ANOTHER vs. MANJUNATHA COTTON AND GINNING FACTORY reported in [2013] 359 ITR 565 (KAR), inspite of the fact that said decision was brought to the notice of the lower authority including Tribunal. 4. The facts of the case appear to be that in the assessment proceedings the assessment order came to be passed by the assessing authority and ultimately the penalty of `1,78,35,511/- was imposed under Section 271 (1)(c) of the Income Tax Act, 1961 (for short the Act ) vide order dated

4 4 5. The matter was carried in appeal before the Commissioner of Income-Tax (Appeals) (for short CIT ). In the said appeal, the Commissioner did not interfere with the order of imposition of penalty. The matter was further carried before the Appellate Tribunal. Appellate Tribunal by the impugned order dated on the aspects of penalty made the following observations at paragraph to as under: We have heard the rival contentions and perused and carefully considered the material on record; including the judicial decisions cited. It is not in dispute and clearly evident that the assessee has not been able to furnish any evidence at all to substantiate the claim of expenditure incurred on cost of improvement. As point out by the authorities below, the assessee was even unable to furnish any details like the parties to whom the payments were made; even if he was unable to give the full and correct details. In the absence of any evidence, we are unable to accept the contentions of the assessee on the claim of incurring cost of improvement. The onus on the assessee to establish the claim of expenditure incurred, has not been discharged.

5 On the issue of whether the failure to discharge the onus of proving the claim of expenditure being incurred would entail levy of penalty u/s. 271(1)(c) of the Act, it is settled principle that an addition or / disallowance resulting in increase to the income of the assessee, raises a presumption of concealment of income. It is a rebuttable presumption, which the assessee can rebut by furnishing material evidence to establish its claim. Explanation -1 to section 271(1)(c) of the Act provides that, if a person fails to offer an explanation or the explanation offered by such person is found to be false or the explanation put forth by him is not substantiated and he fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have not been disclosed by him, for the purposes of section 271(1)(c) of the Act, the amount so added or disallowed in computing the assessee s total income is deemed to represent the concealed income. It is for the assessee to furnish material to establish that the assessee has not concealed income or has not furnished inaccurate particulars of income. In the absence of any such evidence, the presumption of concealment of income or furnishing of inaccurate particulars of income gets sustained. The decision in the case of Manjunatha Cotton & Ginning Factory (supra) of the Hon ble Karnataka High Court, cited by the assessee, also upholds this view.

6 The judicial decisions cited by the assessee do not support the facts of the assessee s case and do not come to its rescue. In the case of Careers Education & Infotech (supra), cited by the assessee, the penalty levied was deleted on the ground that the Tribunal had recorded a categorical finding that there was no material to infer concealment of income or furnishing of inaccurate particulars of income and therefore penalty could not be levied merely because the assessee surrendered additional income consequent to survey action. In the case on hand, however, the penalty has been levied because the assessee could not furnish any evidence in support of the claim of expenditure incurred made in the return of income/ financial statements and the presumption has not been rebutted. The facts of he cited cased vis-à-vis the case on hand are quite different In the case of SAS Pharmaceuticals (supra), it was held that there cannot be any penalty levied only on surmises, conjectures and possibilities and since 271(1)(c) of the Act has to be construed strictly, unless there is actually concealment of income or non-disclosure of the particulars of income, penalty cannot be levied as the assessee has made a complete disclosure in the return of income. In the case on hand, however, the penalty has been levied because the assessee

7 7 could not furnish any evidence for the claim in the return of income of expenditure having been incurred and therefore the disclosure made in the return of income remains unsubstantiated. In our view, there is no surmise or conjecture involved in the levy of penalty in the assessee s case. Therefore, the facts of the cited case are different and the cited decision would be of no help to the assessee In the case of Manjunatha Cotton & Ginning Factory (supra) of the Hon ble Karnataka High Court, it was held that merely because assessee agreed for the addition and the assessment order passed on the basis of this addition, in the absence of any material on record to show concealment of income, it cannot be referred that the said addition is on account of concealment of income. In the case on hand, the penalty has not been levied because the addition was an agreed addition but because the assessee could not furnish any evidence to substantiate its claim of having incurred the expenditure. Hence, we find that the facts of the cited case are different from that of the case on hand and would not be applicable We find on perusal of the cited case of K.P.Sampath Reddy (supra) of the Hon ble Karnataka High Court, that the decision in fact goes against the assessee. In that case the Hon ble High Court upheld the levy of penalty u/s.

8 8 271(1)(c) of the Act observing at para 6 thereof that, 6. We are constrained to reject the assessee s contention. We are pained to note that the Tribunal completely ignored the assessment order which was not based on any concession from the assessee. Concealment of income in the return filed by the assessee is a glaring fact in the instant case. It is not possible to infer any agreement by the Revenue, either in clear terms or by necessary implication, to act on the basis of the assessee s letter. Assessee has to thank himself that the ITOO levied the minimum penalty only. In the case on hand also, the levy of penalty has its origin in the return of income filed by the assessee and the inability of the assessee to furnish evidence to support the claim made in the return of income and which has no relation whatsoever to any agreement between revenue and the assessee on this point The cited decision of Gem Granites (supra) of the Hon ble High Court of Madras also, in a way goes against the assessee. In that case, the penalty was cancelled because the assessee had given a cogent explanation

9 9 and therefore discharged the onus upon it. In the case on hand, however, the assessee has not given any explanation supported by material evidence to substantiate the claim made in the return of income and as such, the decision in the cited case is not applicable to the facts of the case on hand. In view of the above discussion of the facts and circumstances of the case, we are of the considered view that the decision of the learned CIT (A) in confirming the levy of penalty u/s.271(1)(c) of the Act on this point does not call for any interference by us. Consequently, Ground Nos.3 and 4 of the assessee s appeal are dismissed. Under circumstances, the present appeals are before this Court. 6. A perusal of above observations made by the Tribunal would indicate that during the course of hearing the attention of Tribunal was brought to the decision of this Court in the case of COMMISSIONER OF INCOME-TAX AND ANOTHER vs. MANJUNATHA COTTON AND GINNING FACTORY reported in [2013] 359 ITR 565 (KAR) (supra). However, Tribunal did not

10 10 accept the contention of the assessee by examining the facts to the extent that the penalty has not been levied because the addition was an agreed addition but because the assessee could not furnish any evidence to substantiate its claim for having incurred the expenditure, the Tribunal held that decision of this Court in the case of COMMISSIONER OF INCOME-TAX AND ANOTHER vs. MANJUNATHA COTTON AND GINNING FACTORY reported in [2013] 359 ITR 565 (KAR) (supra) would not be applicable to the case on hand. 7. We may record that during the course of hearing the learned counsel for the appellant has tendered the copy of notice issued to the assessee under Section 271(1)(c) of the Act dated for imposition of penalty, which as per the learned counsel for appellant was a part of record in the proceedings before the Tribunal. Learned counsel for the respondent revenue is unable to dispute that notice dated

11 was issued by the Department for imposition of penalty under Section 271(1)(c) of the Act. Hence, said notice for the purpose of consideration is taken on record. Said notice disclose that it is a printed notice and further no specific ground is mentioned, which may show that the penalty could be imposed on the particular ground for which said notice was issued. If the decision of this Court in case of COMMISSIONER OF INCOME- TAX AND ANOTHER vs. MANJUNATHA COTTON AND GINNING FACTORY reported in [2013] 359 ITR 565 (KAR) (supra) is considered, this Court in the said decision had observed at paragraph 63 as under: 63. In the light of what is stated above, what emerges is as under: (a) Penalty under Section 271(1)(c) is a civil liability. (b) Mens rea is not an essential element for imposing penalty for breach of civil obligations or liabilities. (c) Willful concealment is not an essential ingredient for attracting civil liability. (d) Existence of conditions stipulated in Section 271(1)(c) is a sine qua non for

12 12 initiation of penalty proceedings under Section 271. (e) The existence of such conditions should be discernible from the Assessment Order or order of the Appellate Authority or Revisional Authority. (f) Ever if there is no specific finding regarding the existence of the conditions mentioned in Section 271(1)(c), at least the facts set out in Explanation 1(A) & 1(B) it should be discernible from the said order which would by a legal fiction constitute concealment because of deeming provision. (g) Even if these conditions do not exist in the assessment order passed, at least, a direction to initiate proceedings under Section 271(l)(c) is a sine qua non for the Assessment Officer to initiate the proceedings because of the deeming provision contained in Section 1(B). (h) The said deeming provisions are not applicable to the orders passed by the Commissioner of Appeals and the Commissioner. (i) The imposition of penalty is not automatic. (j) Imposition of penalty even if the tax liability is admitted is not automatic. (k) Even if the assessee has not challenged the order of assessment levying tax and interest and has paid tax and interest that by itself would not be sufficient for the authorities either to initiate penalty

13 13 proceedings or impose penalty, unless it is discernible from the assessment order that, it is on account of such unearthing or enquiry concluded by authorities it has resulted in payment of such tax or such tax liability came to be admitted and if not it would have escaped from tax net and as opined by the assessing officer in the assessment order. (l) Only when no explanation is offered or the explanation offered is found to be false or when the assessee fails to prove that the explanation offered is not bonafide, an order imposing penalty could be passed. (m) If the explanation offered, even though not substantiated by the assessee, but is found to be bonafide and all facts relating to the same and material to the computation of his total income have been disclosed by him, no penalty could be imposed. (n) The direction referred to in Explanation IB to Section 271 of the Act should be clear and without any ambiguity. (o) If the Assessing Officer has not recorded any satisfaction or has not issued any direction to initiate penalty proceedings, in appeal, if the appellate authority records satisfaction, then the penalty proceedings have to be initiated by the appellate authority and not the Assessing Authority. (p) Notice under Section 274 of the Act should specifically state the grounds

14 14 mentioned in Section 271(1)(c), i.e., whether it is for concealment of income or for furnishing of incorrect particulars of income. (q) Sending printed form where all the ground mentioned in Section 271 are mentioned would not satisfy requirement of law. (r) The assessee should know the grounds which he has to meet specifically. Otherwise, principles of natural justice is offended. On the basis of such proceedings, no penalty could be imposed to the assessee. (s) Taking up of penalty proceedings on one limb and finding the assessee guilty of another limb is bad in law. (t) The penalty proceedings are distinct from the assessment proceedings. The proceedings for imposition of penalty though emanate from proceedings of assessment, it is independent and separate aspect of the proceedings. (u) The findings recorded in the assessment proceedings in so far as "concealment of income" and "furnishing of incorrect particulars" would not operate as res judicata in the penalty proceedings. It is open to the assessee to contest the said proceedings on merits. However, the validity of the assessment or reassessment in pursuance of which penalty is levied,

15 15 cannot be the subject matter of penalty proceedings. The assessment or reassessment cannot be declared as invalid in the penalty proceedings. 8. We are not required to consider the other contingencies for examination of legality and validity of the penalty under Section 271(1)(c) of the Act, but clauses (p), (q) & (r) of the above referred observations are required to be considered. 9. As per the above referred decision of this Court, the notice would have to specifically state the ground mentioned in Section 271 (1)(c) of the Act namely as to whether it is for the concealment of income or furnishing incorrect particulars of the income said penalty proceedings is being initiated. Second aspect is that, as held by this Court, sending of printed form wherein the grounds mentioned in Section 271 of the Act would not satisfy the requirement of law. The third aspect for which the observations are made by this Court is that, the assessee should know the ground which he

16 16 has to meet specifically otherwise the principles of natural justice would be violated and consequently, no penalty could be imposed on the assessee if there is no specific ground mentioned in the notice. No specific ground is mentioned in the subject notice and resultantly the principles of natural justice could be said as violated. 10. In our view, if the observations made by this Court in the above referred decision and more particularly clauses (p), (q) and (r) are considered, it was a case wherein the decision of this Court would apply and it cannot be said that the decision of this Court in the case of COMMISSIONER OF INCOME-TAX AND ANOTHER vs. MANJUNATHA COTTON AND GINNING FACTORY reported in [2013] 359 ITR 565 (KAR) (supra) would not apply. 11. In view of the aforesaid discussion, if the decision of this Court in case of COMMISSIONER OF INCOME-TAX AND ANOTHER vs. MANJUNATHA

17 17 COTTON AND GINNING FACTORY reported in [2013] 359 ITR 565 (KAR) (supra) is considered, the resultant effect would be that the notice in question issued under Section 271(1)(c) for levy of penalty and consequently the penalty imposed, both would be unsustainable and cannot stand in the eye of law. 12. In the rectification power, the Tribunal at one point of time did observe that since a specific contention was not raised by the assessee before the Appellate Authority, it is a mixed question of law and fact and the same may also be permissible. The relevant observations of the Tribunal are referred in the order passed in M.A.No.62/BANG/15 for rectification and the Tribunal, has not accepted the contention raised therein. 13. It is hardly required to be stated that if the question of law is raised which goes to the root of the matter and for which no undertaking of the factual examination is required, the same could be permitted by the Tribunal. Had it been a case where the notice for

18 18 penalty was not on record in the proceedings of assessment, the matter might stand on a different footing. In any case, where notice for imposition of penalty under Section 271(1)(c) of the Act was already there on record and when the Tribunal was to examine the applicability of this Court decision in the case of M/s.Manjunatha Cotton and Ginning Factory (supra) and the law laid down, it was a case where the contention ought to have been considered and examined. As observed by us herein above, the decision in the case of M/s.Manjunatha Cotton and Ginning Factory (supra), would apply and if the notice is found to be illegal and is found to be unsustainable in law and the consequences would be that there is breach of natural justice. Hence, the ultimate order for imposition of penalty cannot be sustained. 14. In view of the aforesaid observations and discussions, the question is answered in favour of the assessee, against the revenue. It is held that the

19 19 impugned order of the Tribunal in the main appeal as well as in the M.A.No.62/BANG/15 insofar as it relates to not interfering with the order for imposition of penalty is set-aside. It is further observed and declared that as the question is answered in favour of the assessee and against the revenue, the order for imposition of penalty shall remain set-aside. Appeals are allowed to the aforesaid extent. No order as to costs. In view of disposal of the main appeal, I.A.No.2/2016 filed for stay does not survive and same stands disposed of. Sd/- JUDGE Sd/- JUDGE DR/GH