Case Law Details
ITO Vs Audyogik Tantra Shikshan (ITAT Pune)- The assessee in its Cross Objection, has objected the penalty levied by the A.O with this contention that the A.O has not recorded his satisfaction against the alleged default of filing inaccurate particulars of income as contemplated under the statute in the A.Y. 2004- 05 and has failed to initiate the penalty proceeding during the course of assessment proceedings. The assessee also prayed for awarding the cost u/s. 254(2B) of the Act to the assessee.
On Appeal Honourable ITAT held that :-
We are surprised to note that contents of assessment orders meant for the same A.Y. 2004-05 in the case of the same assessee, are different. Both the assessment orders are stated to have been passed by the A.O on 25th November 2006. The difference is that para no. 5 of the assessment order filed with the memo of appeal preferred by the revenue contents the concluding sentence “In this regard, assessee Trust has not submitted any supporting document, evidence, hence penalty u/s. 271(1)(c ) of the I.T. Act 1961 is initiated separately.” In the assessment order filed along with memo of cross objection, para no. 5 of the assessment order does not contain the said sentence. Similarly, at the bottom of the assessment order filed by the revenue, the concluding sentence is “issue penalty, show cause notice u/s. 274 r.w.s. 271(1)(c ) of the I.T. Act 1961” is missing in the assessment order filed by the assessee along with memo of cross objection preferred by it. The copy of assessment order filed by the assessee with its cross objection is a certified true copy by the ITO and further certified as true copy by the assessee. The above stated facts and circumstances suggest that the A.O has tried to cover up its lapses in not mentioning his satisfaction that it is a fit case for levy of penalty u/s. 271(1)(c) and recording of the initiation of penalty proceedings in the assessment order, which cannot in any way be appreciated. Under these circumstances, there is no reason to doubt the allegation of the assessee that the A.O was adamant to harass the assessee. Thus, in our view, it is a fit case of awarding cost u/s. 254(2B) of the Act, but at the same time, we appreciate the approach of the assessee as discussed hereinabove that they are not interested in the awarding of the cost but their whole purpose in making such request in awarding the cost is only to bring the high handedness of the A.O against the assessee to the notice of the Tribunal. Under the circumstances, we though restrain ourselves from awarding the cost as wished by the assessee, but at the same time, we are inclined to record over here before parting with the order that A.O should have confined himself in making just and proper assessment only, as per the provisions of the law and harassment of the assessee which is not permitted under the Statute should have been avoided at all cost. We hold that the penalty levied u/s. 271(1)(c ) was also not valid since the A.O during the course of assessment proceedings, had failed to record his satisfaction that there was concealment of particulars of income or furnishing inaccurate particulars on the part of the assessee towards addition made by the A.O and the A.O had also failed to initiate penalty proceedings during the course of assessment proceedings.
IN THE INCOME TAX APPELLATE TRIBUNAL
Pune Bench “A”, Pune
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