1 ITA No. 8016 to 8019/Del/2018 (Krishna Devi) IN INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER I.T.A. No. 8016/DEL/2018 (A.Y. 2009-10) I.T.A. No. 8017/DEL/2018 (A.Y. 2010-11) I.T.A. No. 8018/DEL/2018 (A.Y. 2011-12) I.T.A. No. 8019/DEL/2018 (A.Y. 2012-13) Krishna Devi Vs. ACIT H. No. 823, Palam Vihar More, Circle-44(1), Bijwasan, New Delhi-110061 New Delhi PAN : BXWPD1061J APPELLANT (RESPONDENT) Appellant by Sh. B.L.Gupta, ITP Respondent by Sh. S.L.Anuragi, Sr.DR Date of Hearing 09.09.2019 Date of Pronouncement 11.09.2019 ORDER PER SUCHITRA KAMBLE, JM These appeals are filed by assessee against orders dated 09.10.2018 passed by Commissioner of Income Tax (Appeals)- 15, Delhi for assessment years 2009-10, 2010-11, 2011-12 and 2012-13 respectively. 2. In all these appeals grounds are identical therefore, we reproducing grounds for A.Y. 2009-10 as under: ITA No 8016 /Del/2018 (A.Y. 2009-10) 1. On facts and in circumstance of case and in law CIT(A) -15 was incorrect and unjustified in dismissing appeal of assessee. 2 ITA No. 8016 to 8019/Del/2018 (Krishna Devi) 2. On facts and in circumstance of case and in law CIT(A) -15 was incorrect and unjustified in sustaining penalty unjustifiably levied by AO u/s 271(1)(c) by holding that Hon'ble Supreme Court judgment in case of SSA's Emerald Meadows reported in 386 ITR 13 and Manjunath etc would not help assessee. 3. On facts and in circumstance of case and in law CIT(A) -15 was incorrect and unjustified in holding that penalty levied u/s 271(l)(c) by AO was correct and justified even in presence of SSA's Emerald Meadows and Manjunath judgments and also others as given before CIT(A). 4. On facts and in circumstance of case and in law CIT(A) -15 was incorrect and unjustified in holding that penalty notice issued by AO u/s 271(l)(c) was legal and therefore contention of assessee that penalty notice infact was illegal and bad in law itself, in view of aforesaid two judgments and therefore penalty order was not sustainable. 5. On facts and in circumstance of case and in law reliance on several judgments of Hon'ble Supreme Court, High Courts and Tribunals in dismissing appeal of assessee are misplaced since they are either not applicable in present case or rendered prior to aforesaid two judgments. 6. On facts and in circumstance of case and in law CIT(A) -15 was incorrect and unjustified in holding that there is concealment of income even when income assessed is same as returned. 7. On facts and in circumstance of case and in law CIT(A) -15 was incorrect and unjustified in holding that penalty for concealment of income has been rightly levied even when penalty notice has been issued both for concealment of income and also for filing incorrect particulars of income which is bad in law since inappropriate words have not been struck of. 8. On facts and in circumstance of case and in law CIT(A) -15 3 ITA No. 8016 to 8019/Del/2018 (Krishna Devi) was incorrect and unjustified in holding penalty proceedings have been rightly initiated even when penalty proceedings have not been legally initiated even after amendment in Act. 9. Without prejudice to above grounds of appeal, On facts and in circumstance of case and in law CIT(A) -15 was incorrect and unjustified in confirming penalty u/s 271(l)(c) without proving either concealment or filing of inaccurate particulars of income and hence orders of Authorities below needs quashing. 3. brief facts of A.Y. 2009-10 are taken hereinafter. Assessing Officer had information that during relevant F.Y. 2008-09, assessee received rental income of Rs. 6,00,000/-, as his share of income from house property. Since income exceeded maximum amount which is not chargeable to Income Tax, assessee was liable to file return u/s 139, however it was also revealed to Assessing Officer that no ITR was filed by assessee for relevant A.Y. 2009-10. Accordingly, Assessing Officer issued notice u/s 148 on 29.03.2016, after observing that rental income amounting to Rs. 6,00,000/- has escaped assessment. assessee was duly served with notice u/s 148 and he was asked to submit his return within 30 days of receipt of notice. However, even after receipt of notice u/s 148, no return was filed by assessee within time limit specified in notice or even afterwards. assessee objected to issue of notice u/s 148 and objections were disposed off by Assessing Officer. Thereafter, Assessing Officer issued notice dated 24.06.2016, u/s 142(1) of Income Tax Act to assessee asking him to appear on 05.07.2016 and also submit his return. In response, assessee filed online ITR on 30.06.2016, in which total income amounting to Rs. 4,58,717/- was declared. In total income amount of income under house property escaping assessment was duly offered to tax, after claiming benefit of deduction @ 30%. Since entire rental income, which was received by assessee, as per information in possession 4 ITA No. 8016 to 8019/Del/2018 (Krishna Devi) of Assessing Officer was fully disclosed/declared by assessee in his ITR, Assessment was completed at same figure of total income amounting to Rs. 4,58,717/-. In this manner, returned income was accepted by Assessing Officer. Subsequently, Assessing Officer levied penalty u/s 271(1)(c), after treating that amount of Rs. 4,58,717/- represented concealed income. 4. Being aggrieved by Penalty order, assessee filed appeal before CIT(A). CIT(A) dismissed appeal of assessee. 5. Ld. AR submitted that Notice u/s 274 read with Section 271(1)(c) of Income Tax Act dated 26.08.2016 did not specify particular charge of concealment or furnishing inaccurate particulars of such income. Ld. AR further submitted that in assessee s own case for A.Y. 2013-14 being ITA No. 8020/Del/2018 order dated 03.06.2019, Tribunal allowed appeal of assessee. Besides that Ld. AR also relied upon decision of Hon ble Apex Court in case of CIT vs. SSA s Emerald Meadows (2016) 73 Taxman.com 241(Kar) confirming Hon ble Karnataka High Court s decision in case of CIT vs. Manjunatha Cotton & Ginning Factory 359 ITR 565 (Kar) as well as Hon ble Delhi Court decision in case of Pr. CIT vs. M/s Sahara India Life Insurance Co. Ltd. (ITA No. 475/2019 order dated 02.08.2019). 6. Ld. DR relied upon Assessment Order, Penalty order and order of CIT(A), but could not distinguish decisions relied upon by Ld. AR. 7. We have heard both parties and perused all relevant material available on record. First of all, in notice issued u/s 274 r.w.s 271(1)(c) of Income Tax Act, 1961, there was no specific charges as relates to concealment of income or furnishing of inaccurate particulars of income. 5 ITA No. 8016 to 8019/Del/2018 (Krishna Devi) Section 271(1)(c) of Act was not correctly invoked by Assessing Officer. CIT(A) also overlooked actual intention of penalty proceedings which clearly set out that when there is inaccurate particulars or concealment on part of assessee, then same should be proceeded. But in present case, assessee has disclosed all factual aspects before Assessing Officer which cannot be stated that there was concealment of particulars of income or assessee furnished inaccurate particulars of income. Assessee has also filed all details during assessment proceedings. From notice, it can be seen that Assessing Officer was not sure under which provisions of Section 271 of Income Tax Act, 1961, assessee is liable for penalty. issue is squarely covered by decision of Hon'ble Supreme Court in case of M/s SSA Emerald Meadows. extract of Hon ble Karnataka High Court in M/s. SSA Emerald Meadows are as under which was confirmed by Hon ble Apex Court: 3. Tribunal has allowed appeal filed by assessee holding notice issued by Assessing Officer under Section 274 read with Section 271(1)(c) of Income Tax Act, 1961 (for short Act ) to be bad in law as it did not specify which limb of Section 271(1)(c) of Act, penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing of inaccurate particulars of income. Tribunal, while allowing appeal of assessee, has relied on decision of Division Bench of this Court rendered in case of COMMISSIONER OF INCOME TAX -VS- MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. 4. In our view, since matter is covered by judgment of Division Bench of this Court, we are of opinion, no substantial question of law arises in this appeal for determination by this Court. appeal is accordingly dismissed. Besides that in assessee s own case for A.Y. 2013-14 same issue has been decided by Tribunal decided this issue in favour of assessee. 6 ITA No. 8016 to 8019/Del/2018 (Krishna Devi) Hon ble Jurisdictional High Court in case of Sahara India Life Insurance Co. Ltd. (supra) held as under: 21. Respondent had challenged upholding of penalty imposed under Section 271(1)(c) of Act, which was accepted by ITAT. It followed decision of Karnataka High Court in CIT v. Manjunatha Cotton & Ginning Factory 359 ITR 565 (Kar) and observed that notice issued by AO would be bad in law if it did not specify which limb of Section 271(1)(c) penalty proceedings had been initiated under i.e. whether for concealment of particulars of income or for furnishing of inaccurate particulars of income. Karnataka High Court had followed above judgment in subsequent order in Commissioner of Income Tax v. SSA s Emerald Meadows (2016) 73 Taxman.com 241(Kar), appeal against which was dismissed by Supreme Court of India in SLP No. 11485 of 2016 by order dated 5th August, 2016. 22. On this issue again this Court is unable to find any error having been committed by ITAT. No substantial question of law arises. Thus, penalty imposed u/s 271(1)(c) of Act is set aside. All four appeals of assessee are allowed as all appeals are identical. 8. In result, appeals of assessee are allowed. Order pronounced in Open Court on 11th September, 2019. Sd/- Sd/- (N. K. BILLAIYA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 11/09/2019 *Binita* 7 ITA No. 8016 to 8019/Del/2018 (Krishna Devi) Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI Date of dictation 09.09.2019 Date on which typed draft is placed before .09.2019 dictating Member Date on which typed draft is placed before Other Member Date on which approved draft comes to Sr. PS/PS Date on which fair order is placed before Dictating Member for pronouncement Date on which fair order comes back to Sr. PS/PS Date on which final order is uploaded on website of ITAT Date on which file goes to Bench Clerk Date on which file goes to Head Clerk Krishna Devi v. ACIT Circle-44(1), New Delhi