Shivaji Dattatray Sonawane Vs ITO (ITAT Pune)
In the case Shivaji Dattatray Sonawane vs. ITO, ITAT Pune ruled in favor of the assessee by deleting penalties imposed under Section 270A of the Income Tax Act for Assessment Years 2017–18 and 2018–19. The penalties, amounting to ₹1,99,712 and ₹3,05,952 respectively, were originally levied for alleged under-reporting of income due to misreporting. However, the core issue raised by the assessee was that the penalty notices issued by the Assessing Officer (AO) failed to specify the relevant clause under Section 270A(9) which was being invoked under the broader Section 270A(8).
The assessee argued that this lack of clarity in the penalty initiation stage rendered the entire proceedings invalid. Although the AO later cited Section 270A(9)(a) in the penalty orders, the Tribunal held that failure to mention the specific provision at the time of issuing the show cause notices constituted a legal defect. Relying on multiple judicial precedents including Mohd. Farhan A. Shaikh vs. DCIT (Bombay High Court), Schneider Electric SE Asia vs. ACIT, and Prem Brothers Infrastructure LLP vs. NFAC, the Tribunal concluded that such a defect is incurable and invalidates the penalty.
The Revenue contended that the omission was unintentional and did not cause any prejudice to the assessee. However, the Tribunal rejected this argument, emphasizing that the principle of natural justice requires that the assessee be informed of the exact charge in order to prepare a meaningful response. Given that the AO did not clearly indicate the clause being invoked at the time of issuing the penalty notice, the ITAT Pune held that the penalties could not be sustained. Consequently, the penalties for both years were deleted and the appeals were allowed. The delay in filing one of the appeals was also condoned in view of the overall merits of the case.
FULL TEXT OF THE ORDER OF ITAT PUNE
These assessee’s twin appeals I.T.A.Nos.708 & 1089/PUN./2023, for assessment years 2017-2018 & 20182019, arise against the National Faceless Appeal Centre’s [in short “NFAC”] as many orders dated 05th April and 29th September, 2023, having Din & Orders nos. ITBA/NFAC/S/250/2023-24/1051888360(1) and 1056661604(1) respectively; in proceedings u/sec.270A of the Income Tax Act, 1961 (in short “the Act”).
Heard both the parties. Case files perused.
2. It emerges during the course of hearing that the assessee’s identical sole substantive grievance in both these appeals challenges correctness of learned lower authorities’ action imposing the penalties of Rs.1,99,712/- 3,05,952/- in assessment years 2017-18 and 2018-19; respectively. His first and foremost legal argument is in light of the relevant show cause notices; both dated 10.03.2021 that the learned Assessing Officer had nowhere specified the corresponding limb in sub-sec.270A(9) of the Act as he had sought to levy penalties under sub-sec.(8) thereof. Learned counsel has placed both these show cause notices as well as a compilation of case law reading as under :
3. The Revenue on the other hand has vehemently argued that the Assessing Officer’s identical show cause notices hereinabove only suffer from an unintended omission as he had duly initiated the impugned proceedings u/sec.270A of the Act not only in both these assessments dated 10.03.2021 but also his sec.270A penalty orders have duly pinpointed the corresponding limb in identical paragraphs 7.1 by invoking sec.270A (9) (a) of the Act and, therefore, the assessee hardly stands to gain from the foregoing unintentional mistake in the show cause notices. Mr. Nayak further took us to both these case files and vehemently argued that learned lower authorities have duly heard the assessee. He has not suffered from any prejudice which could vitiate the penalty proceedings before us in these facts.
4. We have given our thoughtful consideration to the foregoing vehement rival stands and find no merit in Revenue’s arguments. This is for the precise reason that it has duly come on record in light of the Assessing Officer’s corresponding twin identical show cause notices that he had not specified the corresponding limb u/sec.270A(8) read with sub-section(9) thereof as was held in various judicial pronouncements G.R. Infraprojects Ltd. vs. ACIT [D.B. Civil Writ Petition no.5594/2023 – Rajasthan High Court dated 02.01.2014]; Schneider Electric South East Asia (HQ) PTE Ltd. vs. ACIT [2022] 443 ITR 186 (Del.) (HC) and Prem Brothers Infrastructure LLP vs. NFAC [2022] 334 CTR 363 (Del.) (HC). We further wish to draw support from hon’ble jurisdictional high court’s decision in Mohd. Farhan A. Shaikh vs. DCIT [2021] 434 ITR 1 (Bom.)(HC) (FB) that such a failure on Assessing Officer’s part in not specifying the relevant limb at the time of initiation of penalty itself vitiates the entire proceedings being in the nature of an incurable defect. Faced with the situation, we delete the impugned penalties of Rs. 1,99,712/- and Rs. 3,05,952/-; assessment year-wise, respectively.
5. Delay of 08 days in filing of assessee’s former appeal ITA.No.708/PUN./2023 is condoned in the larger interest of justice and in light of the corresponding averments in condonation affidavit.
6. These assessee’s twin appeals I.T.A. Nos.708 & 1089/PUN./2023 are allowed in above terms. A copy of this common order be placed in the respective case files.
Order pronounced in the open Court on 02.02.2024.
