| The Tax Publishers2021 TaxPub(DT) 3011 (Mum-Trib) INCOME TAX ACT, 1961
Section 271(1)(c)
Notice issued under section 274 read with section 271(1)(c) nowhere specified as to under which limb penalty was sought to be levied, i.e., whether for concealment of the particulars of income or 'furnishing of inaccurate particulars of income' referred to in section 271(1)(c). Accordingly the notice was defective. Further, non-obstante clause under section 153A excludes application of inter alia, section 139, and thus, the revised return filed under section 153A takes place of the original return under section 139, for the purposes of all other provisions of the Act. Taking into account all the facts and circumstances, it was quite clear that no penalty was leviable on account of non-filing of return under section 139(1).
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Penalty under section 271(1)(c) - Concealment or furnishing of inaccurate particulars - Defective notice - Non-filing of return under section 139(1)--Return filed in pursuance to section 153A notice
Assessee did not file the return of income under section 139(1). Subsequently, notice under section 153C was issued on 1-10-2015 which was served upon assessee. In view of the notice, assessee filed return of income on 15-12-2015 declaring total income to the tune of Rs. 11,37,690. Accordingly, AO levied penalty under section 271(1)(c) on account of non-filing of return under section 139(1). Assessee challenged this on the ground of non-mention of particular charge of offence in penalty notice. Held: Notice issued under section 274 read with section 271(1)(c) nowhere specified as to under which limb penalty was sought to be levied, i.e., whether for concealment of the particulars of income or 'furnishing of inaccurate particulars of income' referred to in section 271(1)(c). Accordingly, the notice was defective. Further, non-obstante clause under section 153A excludes application of inter alia, section 139, and thus the revised return filed under section 153A takes place of the original return under section 139, for the purposes of all other provisions of the Act. Taking into account all the facts and circumstances, it was quite clear that no penalty was leviable.
Followed:Kirit Dahyabhai Patel v. Asstt. CIT (2017) 80 Taxmann. com 162 (Guj) : 2015 TaxPub(DT) 2190 (Guj-HC) and CIT-11 v. Samson Perinchery ITA No. 1154/M/2014 : 2017 TaxPub(DT) 0672 (Bom-HC).
REFERRED :
FAVOUR : In assessee's favour.
A.Y. : 2010-11 to 2012-13
IN THE ITAT, MUMBAI BENCH
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