CA.SUDEEP K. JAIN

CHAIRMAN - AGRA BRANCH

CA.SUDEEP K. JAIN

CA. ASHISH JAIN

CA. GAURAVBANSAL

CA. S.C. JAIN

CA. AYUSH GOYAL

CA. U.K. GARG

CA. NIKHIL GUPTA

CA.SANDEEPKAPOOR

CA.VINAYBANSAL

CA.PANKAJ MISHRA

Vol XXX Issue: 11 For Private Circulation Only JANUARY- 2020

Respected Professional Colleague, Ringing in the New Year is cause for celebration, for spending time with friends and family,

and for looking back. A lot can happen in a year and between the good, the bad, and the ugly, this may seem like an understatement for most. As glasses are raised and fireworks explode into the sky, it‘s important to recognize the special symbolism this holiday brings with it. A time of new beginnings and fresh starts also comes with a time of reflection.

Whether your resolutions consist of keeping your hands out of the cookie jar or giving your heartfelt word to work on relationships with loved ones, it can take work. And it can make all the difference to put these hopes into words and warm wishes. The Agra Branch of ICAI and its managing committee have put in their best efforts in organising programs and activities for members and students during the year 2019. At all fronts we could stand for the cause of the profession. The year 2019 was eventful. In the years to come the profession may have to face more challenges for which we should be equipped enough. Challenges will be coming to people who are capable of facing the challenges. With our enormous potential and value system as professionals we can demonstrate to the society that no temporary challenges can hamper our long term goals and visions. In the month of December 2019, Agra Branch conducted CPE Programmes of 75 Hours in Agra and Mofussil areas. The details are as below:

Date EVENT CPE- Hrs

8.12.2019 Lecture Meeting on E- Assessment Procedure of Income Tax 3

8.12.2019 Seminar on Art of Happy Living & Preparation of Project Report 3

9.12.2019 Lecture Meeting on GSTR New Return Forms 3

11.12.2019 Half Day Program on Ethical Standards 3

11.12.2019 Half Day Program Appeals under Income tax 3

12.12.2019 Half Day Seminar on New GSTR Return Forms 3

14 & 15.12.2019

Two Days Seminar on Accounting Standards 8

15.12.2019. Seminar on GST Form 9, Form 9C & Ethical Standards 6

16.12.2019 Lecture Meeting on Life, General & Indemnity insurance 3

17.12.2019 Seminar on GST Form 9, Form 9C 3

18.& 19.12.2019

Two days conference: Concurrent Bank Audit & Stock audit 8

20.12.2019 Half-Day Program on Provision of TDS under Income Tax Act 3

24.12.2019 Half-Day Program on Deductions for Salary Income 3

26.12.2019 Full day seminar on AS & new GST returns 6

27.12.2019 Half day program on new GST returns 3

28.12.2019 One Day Seminar on New GST Return Forms & AS 6

29 & 30.12.2019

Two -days residential refresher course 8

I would like to request one and all to attend programmes of varied subjects that would benefit to hone your professional skills throughout the coming year. With warm professional regards,

CA Sudeep Kumar Jain Chairman, Agra Branch of CIRC

Happy New Year

Chief Editor

Editors

Members

Page 2

1. New Year Wishes

2. Article : (I) A presence of just one question mark can delete penalty

u/s 271(1)(C ) of the I.T Act,1961 By : CA. Prarthna Jalan

(II) All About GST Refund By : CA. Deepti Agarwal

(III) INSOLVENCY AND BANKRUPTCY CODE

BASICS ABOUT FILING AN APPLICATION AND SUBSEQUENT PROCEDURE By : CA. Alka Choudhary

3. Glimpses Of December-19 Activities

Pg: 3-7

Pg: 08-17

Pg: 17-19

Pg: 20-22

Pg: 23-30

4. Agra Branch in Media & Seminars

5. Forth Coming Events

Pg: 31-34

Pg: 35

Pg: 7-11

Page 3

Dear Members

Year 2020 is now started and many of us makes new year resolution to achieve new targets.On the

beginning of new year , I want to share my wishes as –

― Let us leave behind what we don‘t need to carry,

Grudges, fear, sadness, pain and regrets.

Life is beautiful celebrate it

May the coming year fill your life with happiness , good health and prosperity!

Wishing you and your family a very Happy New Year 2020.

We at branch try to do our best so that our profession will attain new height and sunshine image and we wish to have your full support with great suggestions to achieve our goals. As in previous years we

witnessed the major changes in our country like demonetisation & introduction of GST and also some ups

& down in economy, but at the same time we as CA again proved that we are partners in Nation Building.

Now a new year is in-front of us to cross new mile stones so we at branch always need your full and active

participation in various activities and programmes of branch. Thus we are conveying our commitment to do our best once again.

Again wishing you and your loved ones a very Happy New Year 2020.

Best Wishes

CA Sharad Paliwal

Vice Chairman Agra Branch of CIRC

Page 4

Dear Members

At the very outset of this New Year 2020 I feel privileged to convey my first address to fellow members as

Secretary of Agra Branch of CIRC of ICAI. With the beginning of the new decade our responsibilities as

professionals are definitely going to increase and so will the expectations of the Government and public at

large. It‘s time to re-discover ourselves for the well being of the society as our predecessors have been doing

it wonderfully in past and to make our learning much more effective and useful. With the implementation of

new laws, procedures and IT enables services our profile has shifted of being more tech-savvy but we should

not forget to sustain the trust which our profession owns. I heartily conclude my message with greetings of

the New Year 2020 to all my fellow members and their family members to all of you.

Best Wishes

CA Ashish Jain

Secretary Agra Branch of CIRC

Page 5

Dear Members

A new year is like a blank book and the pen is in your hands. It is your chance to write a beautiful story for

yourself. Every end makes a new beginning. keep your spirits and determination unshaken and you shall

always walk the glory road . With courage, faith and great efforts, you shall achieve everything you desire.

Happy new year , stay in good health and achieve greater heights of success. Wishing you a wonderful year

ahead.

Best Wishes

CA Gaurav Bansal

Treasurer Agra Branch of CIRC

Page 6

New Year

"For last year's words belong to last year's language, and next year's words await another voice, and to make

an end is to make a beginning." — T.S. Eliot

A very Happy New Year to all my CA Fraternity who being a supportive and a big part of my life.

A new year brings new expectations and goals and let‘s not forget new challenges too. Forget the past

failures; this New Year is a new opportunity to start over. Let‘s find confidence in ourselves, let us create a

possibility to achieve all that you and your family always dreamed of.

Allow us to stop on this positive note and welcome you all to New Year bash. I wish you all a successful, confident and happy life with this New Year and a new beginning.

A new year marks a new beginning. With the onset of another year, we stand at a junction, face to face with

the chance to build a fresh start. Infused with hope and positive energy, we must let all By gones be

bygones, as when we set to accomplish some goals, it is natural for some agenda to remain unfinished in the process. These should then be addressed and achieved, afresh with the zeal and vigour the New Year

brings in.

I tried to fulfill all the expectations of members and students of Agra branch, and in the upcoming year

2020 whatever responsibility I get ill give my 100% for Agra branch.

Regards:

CA Saurabh Narayan Saxena

(CICASA- AGRA CHAIRMAN)

Page 7

Dear Professional Colleagues,

First of all I would like to convey my warm wishes for the New Year ushered in. I convey my best

wishes for peace, happiness, good health and prosperity. I would like to salute the efforts of whole

team of ―News Letter‖ for constant and consistent efforts in materializing this News Letter containing

lots of professional insights for the members.

The Agra Branch has been constant and persistent not only in organizing many events like study

circles, workshops, Seminars, RRC but also updating the members with this consistent endeavor.

I totally believe that change is inevitable and is the only thing that is constant. But it is the sheer pace of change that makes it a big challenge in the present hi-tech era of liberalization, globalization

and privatization, which has put sharper focus on the role of accounting profession.

Innovation and change will always let us develop and upgrade our lives—be it our profession or

personal life. By Innovating the change gets even better and as we have entered into this noble

profession of accountancy, I would like to say this profession demands a continuous and rapid up gradation with the changes which relates not only to our field but also to other spheres of our

economy.

At last let me conclude by recalling a saying that Success is a journey, not a destination. So let‘s

continue with our journey with professional panache with new and ongoing path of information technology waiting for new miracles in this profession too. The best way to know our future is to

invent and build it with our consistent perseverance. We can never plan our future by looking at the

past.

CA. Rakesh Agrawal

M.Com., LL.B., FCA, DISA. Executive Member Agra Branch of CIRC

Wish You New Year 2020 to all my fellow members and their family members to all of you

CA. Deepika Mitta

Executive Member Agra Branch of CIRC

Page 8

A presence of just one question mark can delete penalty u/s 271(1)(C ) of the

I.T Act,1961.

Arthur Vanderbilt has said "Taxes are the lifeblood of government and no taxpayer should be

permitted to escape the payment of his just share of the burden of contributing thereto."

Yet people tend to devise ways and means of escaping payment of taxes and we professionals educate and

convince them to discharge their respective legitimate tax liability with utmost sincerity, honesty and timely

because the failure to do so would not only attract tax liability and interest in future but also PENALTY and

God forbids Prosecution can also take place.

Whenever penalty u/s 271(1)(C ) of the I.T Act,1961 is imposed, we start searching for answers in form of

various case laws, provisions of law to get it deleted. But, I would say instead of looking for answers ,we

should search for just one simple question in the penalty notice or penalty order , which if we are able to

find, than the penalty levied u/s 271(1)(C ) will automatically be deleted.

Though my aforesaid words of searching for question rather than answer might sound absurd but my

words are duly supported by the judgments of the Hon’ble Supreme Court, Hon’ble High court(s) and

Honble ITAT(s)(Temple of knowledge) judicial pronouncements.

We all know that Penalty u/s section of 271(1)( C) is imposed for furnishing of inaccurate particulars of

income or concealment of income , which now has been replaced by sec 270A of the Income Tax Act,1961

wherein now penalty will be imposed for under-reporting of income/misreporting of income.

Thus, Penalty u/s 271(1)(c ) has two limbs- concealment of income or of furnishing inaccurate particulars of

income. Therefore, penalty can be levied u/s 271(1 )(C ) of the Act, only when there is either concealment of

income or of furnishing of inaccurate particulars of income. In the absence of clear cut specification in the

notice issued u/s 274 of the Act or in the order passed for levying of penalty u/s 271(1)(c ) that is it for

concealment of income or of furnishing of inaccurate particulars of income the notice as well as order is bad

in law and penalty imposed in it is liable to be deleted.

Concealment of income and furnishing inaccurate particulars of income carry different connotations.

According to In Webster's Dictionary, "inaccurate" has been defined as:

"not accurate, not exact or correct; not according to truth; erroneous; as an inaccurate statement,

copy or transcript."

Page 9

According to Law Lexicon, the word "conceal" means:

"to hide or keep secret. The word "conceal" is con plus celare which implies to hide.

It means to hide or withdraw from observation; to cover or keep from sight; to

prevent the discovery of; to withhold knowledge of. “

It is a basic requirement of law that before a penalty is imposed, the assessee must be

apprised of the precise charge brought against him. Law requires that assessee must be told

distinctly whether he is held guilty of having „concealed the particulars of his income‟ or of

having „furnished inaccurate particulars of Income‟.Section 274(1) provides for a reasonable

opportunity to be given to the assessee so that he can meet the charge against him. This is to

ensure that the assessee gets an adequate opportunity in respect of the default, which is found

and alleged against him and which forms the basis of the issuance of the Notice under section

271(1)(c) and to ensure that the assessee is not put to peril of answering against something,

which never was specifically determined as his default or in respect of which, no notice was

issued by the AO. It is the satisfaction of the AO which alone matters at the time of initiation of

penalty proceedings on the basis of which penalty can be levied and sustained.

The practice of the Department sending a printed form where all the ground mentioned in

Section 271 are mentioned would not satisfy requirement of law when the consequences of the

assessee not rebutting the initial presumption is serious in nature and he had to pay penalty

from 100% to 300% of the tax liability. As the said provisions have to be held to be strictly

construed, notice issued under Section 274 should satisfy the grounds which he has to meet

specifically. Otherwise, principles of natural justice is offended if the show cause notice is

vague. On the basis of such proceedings, no penalty could be imposed on the assessee.

Therefore, the Assessing Officer should be clear as to which of the two limbs under which

penalty is imposable, has been contravened while initiating penalty proceedings. It cannot be

that the initiation would be only on one limb i.e. for furnishing inaccurate particulars of income

while imposition of penalty on the other limb i.e. concealment of income. A clear cut

demarcation of which of the two limbs or are both the limbs been contravened for which

penalty is initiated and is imposed should be clearly mentioned in the notice as well as in the

order imposing penalty.

Page 10

The aforesaid preposition of law has been dealt by the Hon’ble Supreme Court in the

case of CIT V/s M/S SSA'S EMERALD MEADOWS on 5/8/2016 wherein the Hon’ble SC

has dismissed the SLP and has confirmed the Hon’ble Karnataka High Court

Judgement wherein it was held that omission of assessing officer to explicitly

mention that penalty proceedings are being initiated for furnishing of inaccurate

particulars or that for concealment of income makes the penalty order liable for

cancellation even when it has been proved beyond reasonable doubt that the

assessee had concealed income in the facts and circumstances of the case despite

the amendment of Section 271(1B) with retrospective effect.

The Hon’ble Bombay High court in the case of CIT v/s Shri Samson Perinchery vide

order dated 5th January,2017 has also upheld the decision of the Hon’ble Tribunal

wherein penalty levied u/s 271(1)(c ) was deleted because it was observed by the

Hon’ble courts that the initiation of penalty under Section 271 (1)(c) of the Act by

Assessing Officer was for furnishing inaccurate particulars of income while the order

imposing penalty was for concealment of income. It was also observed by the Hon‟ble

court that notice was issued under Section 274 of the Act is in a standard proforma, without

having striked out irrelevant clauses therein. This indicates non-application of mind on the part

of the Assessing Officer while issuing the penalty notice.

The Assessing Officer is empowered under the Act to initiate penalty proceedings once

he is satisfied in the course of any proceedings that there is concealment of income or

furnishing of inaccurate particulars of total income under clause (c). Concealment,

furnishing inaccurate particulars of income are different. Thus the Assessing Officer

while issuing notice has to come to the conclusion that whether is it a case of

concealment of income or is it a case of furnishing of inaccurate particulars. The Apex

Court in the case of T. Ashok Pai v. CIT [2007] 292 ITR 11/161 Taxman 340 has

held that concealment of income and furnishing inaccurate particulars of

income carry different connotations. The Gujarat High Court in the case of CIT

v. Manu Engg. [1980] 122 ITR 306 and the Delhi High Court in the case of CIT

v. Virgo Marketing (P) Ltd [2008] 171 Taxman 156, has held that levy of penalty

has to be clear as to the limb for which it is levied and the position being unclear penalty

is not sustainable. Therefore, when the Assessing Officer proposes to invoke the first

limb being concealment, then the notice has to be appropriately marked. Similar is the

case for furnishing inaccurate particulars of income. The standard proforma without

striking of the relevant clauses will lead to an inference as to non application of mind.

Page 11

Hon’ble ITAT Delhi in its decision dated 5-12-2017 in the case of Ashok Kumar

Chordia v. DCIT in ITA No. 5788 to 5790/Del/2014 has observed as under :–

―7. We have heard both the parties and perused the orders passed by the Revenue Authorities

alongwith the relevant records available with us. Firstly, we have perused the Notice dated 26-3-

2013 issued by the assessing officer for initiating the penalty and directing the assessee to appear

before him at 11.30 AM on 26-4-2013 and issued a Show Cause to the assessee stating therein

that ―…..you have concealed the particulars of your income or furnished inaccurate particulars of

such income…‖. After perusing the notice dated 26-3-2013 issued by the assessing officer to the

assessee, we are of the view that the assessing officer has initiated the penalty for furnishing

inaccurate particulars of income or concealment of income as well as in the penalty order dated 30-

9-2013 assessing officer has stated that he is satisfied that the assessee has concealed particulars

of his income, which is contrary to law. In view of above, the penalty is not sustainable in the eyes

of law. Our aforesaid view is fortified by the following decisions :–

(i) ―CIT & Anr. v. M/s SSA’s Emerald Meadows [I.T.A. No. 380 of 2015, dt. 23-11-2015] has held

that Tribunal has correctly allowed the appeal filed by the assessee holding the notice issued by the

assessing officer under section 274 read with section 271(1)(c) to be bad in law as it did not specify

which limb of section 271(1)© of the Act, the penalty proceedings had been initiated i.e., whether for

concealment of particulars of income or furnishing of inaccurate particulars of income. The Tribunal,

while allowing the appeal of the assessee, has relied on the decision of the Division Bench of this

Court rendered in the case of Commissioner of Income Tax v. Manjunatha Cotton and Ginning

Factory (2013) 359 ITR 565. Thus since the matter is covered by judgment of the Division Bench of

this Court, we are of the opinion no substantial question of law arises – decided in favour of

assessee.‖

on’ble AGRA ITAT in Sachin Arora vs. ITO has held

It is quite clear, that `suppressio vari‟, or „suppression of truth‟, which has, in section

271(1)(c) of the IT Act, as its equivalent, `concealment of income‟, and `suggestio falsi‟,

literally, „suggesting or stating a falsehood‟, which manifests itself as „furnishing of inaccurate

particulars thereof, are two distinctly separate charges; that leveling of either of these charges

has to be explicitly brought to the notice/knowledge of the assessee, sans which, the assessee,

under a nebulous notice containing both these charges, is rendered incapable of defending the

charge per se.

Page 12

This would be in utter violation of the principles of natural justice, such notice being null and

void ab initio. It is also pertinent to note at this juncture that the notice u/s 274 is a

mandatory statutory notice without which, the initiation of penalty proceedings would be

nugatory, nay, non est in the eye of the law. Therefore, the argument of the Department that

where initiation of penalty in the Assessment Order, the levy in the penalty order and the

confirmation of such penalty in the first appellate order are on one and the same charge, the

contents of the notice u/s 274 are of no effect, the assessee having been duly apprised of the

specific charge against them, is not acceptable in law.

Hon’ble Delhi ITAT in its decision dated 26-5-2017 in the case of Rajender Jain v.

ACIT passed in ITA No. 6804/Del/2013 has observed as under :–

―7. We have heard both the parties and perused the orders passed by the Revenue Authorities

alongwith the relevant records available with us. Firstly, we have perused the assessment order

wherein the assessing officer has recorded his satisfaction on the page 2, 2nd para viz. ―I am

satisfied that it is a fit case for initiation of penalty proceedings under section 271(1)(c) of the Act

for furnishing inaccurate particulars of income/concealment of income.‖ We have also perused the

notice dated 31-12-2007 issued by the assessing officer for initiating the penalty and directing the

assessee to appear before him at ———AM/PM on ——–200—— and issued a Show Cause to

the assessee stating therein that why an order imposing the penalty of amount should not be

made under section 271(1)(c) of the Income Tax Act, 1961. After perusing the notice dated 31-12-

2007 issued by the assessing officer to the assessee, we are of the view that the assessing officer

has initiated the penalty for furnishing inaccurate particulars of income/concealment of income, but

in the penalty order dated 6-11-2009 he has stated that he is satisfied that the assessee has

furnished the inaccurate particulars of income.

7.1 However, the learned Commissioner (Appeals) has given clear finding regarding the furnishing

of inaccurate particulars. For the sake of convenience, the relevant Para No. 5.3.1 of the

impugned order passed by the learned Commissioner (Appeals) is reproduced as under :–

Page 13

―7. We have heard both the parties and perused the orders passed by the Revenue Authorities

alongwith the relevant records available with us. Firstly, we have perused the assessment order

wherein the assessing officer has recorded his satisfaction on the page 2, 2nd para viz. ―I am

satisfied that it is a fit case for initiation of penalty proceedings under section 271(1)(c) of the Act

for furnishing inaccurate particulars of income/concealment of income.‖ We have also perused the

notice dated 31-12-2007 issued by the assessing officer for initiating the penalty and directing the

assessee to appear before him at ———AM/PM on ——–200—— and issued a Show Cause to

the assessee stating therein that why an order imposing the penalty of amount should not be

made under section 271(1)(c) of the Income Tax Act, 1961. After perusing the notice dated 31-12-

2007 issued by the assessing officer to the assessee, we are of the view that the assessing officer

has initiated the penalty for furnishing inaccurate particulars of income/concealment of income, but

in the penalty order dated 6-11-2009 he has stated that he is satisfied that the assessee has

furnished the inaccurate particulars of income.

7.1 However, the learned Commissioner (Appeals) has given clear finding regarding the furnishing

of inaccurate particulars. For the sake of convenience, the relevant Para No. 5.3.1 of the

impugned order passed by the learned Commissioner (Appeals) is reproduced as under :–

―5.3.1 The above findings of the learned Commissioner (Appeals) clearly establishes that the

appellant has concealed the income of Rs. 26,50,500 and did not declare in the return of income

inspite of admitting a disclosure of Rs. 40,00,000 during survey. Thus, the appellant has furnished

inaccurate particulars of his income. The facts of the case clearly reveal that the appellant tried to

evade payment of taxes by furnishing inaccurate particulars of income. Therefore, I hold that the

assessing officer was fully justified in levying the penalty under section 271(1)(c) of the Act. The

penalty levied by the assessing officer is upheld. This ground of appeal is rejected.‖

8. Keeping in view of the aforesaid finding of the learned Commissioner (Appeals), we are of the

considered view that the assessing officer has passed the assessment order wherein the

assessing officer has recorded his satisfaction on the page 2, 2nd para viz. ―I am satisfied that it is

a fit case for initiation of penalty proceedings under section 271(1)(c) of the Act for furnishing

inaccurate particulars of income/concealment of income.‖ Further the assessing officer vide his

Notice dated 31-12-2007 for initiating the penalty and directed the assessee to appear before him at —

——AM/PM on —- —-200—— and issued a Show Cause to the assessee stating therein that why an

order imposing the penalty of amount should not be made under section 271(1)(c) of the Income Tax

Act, 1961.

Page 14

After perusing the notice dated 31-12-2007 issued by the assessing officer to the assessee, we

are of the view that the assessing officer has initiated the penalty for furnishing inaccurate

particulars of income/concealment of income, but in the penalty order dated 6-11-2009 he has

stated that he is satisfied that the assessee has furnished the inaccurate particulars of income. In

our view the penalty in dispute is not sustainable in the eyes of law, because the assessing officer

has not recorded any clear finding whether the assessee was guilty of concealment of income or

furnishing of inaccurate particulars of income. Secondly, the notice under section 271(1)(c) has

been issued to the assessee levying the penalty for furnishing of inaccurate particulars of

income/concealment of income, whereas the penalty in dispute has been levied by the assessing

officer on account of furnishing of inaccurate particulars.‖

Jehangir HC Jehangir vs. ACIT (ITAT Mumbai)

A perusal of the quantum assessment order reveals that the penalty has been initiated for

furnishing of inaccurate particulars of income and concealment of particulars of income which,

as per settled legal propositions, are different connotations and carry different meaning and

two separate limbs. The same also becomes clear from the language of show-cause notice

which states that the assessee have concealed the particulars of income or furnished

inaccurate particulars of income. Finally, the penalty has been levied for filing of inaccurate

particulars of income and hence concealed particulars of income which shows inconsistent

thinking on the part of AO. Undisputedly, the AO was required to specify the exact charge for

which the assessee was being penalized which he has failed to do so and the same has

resulted into taking away assessee‟s valuable right of contesting the same and thereby

violates the principles of natural justice

DCIT vs. Nepa Limited (ITAT Indore) vide order dated 12th November,2014 has held

(i) It is incumbent upon the Assessing Officer to state whether penalty was being levied for

concealment of particulars of income by the assessee or whether any inaccurate particulars of

income had been furnished by the assessee. There are two different charges i.e. the

concealment of particulars of income or furnishing of inaccurate particulars of income. The

penalty can be imposed for a specific charge. Furnishing of inaccurate particulars means

when the assessee has not disclosed the particulars correctly or the particulars disclosed by

the assessee are incorrect. Concealment of particulars of income means when the assessee

has concealed the income and has not shown the income in its return or in its books of

accounts;

Page 15

(ii) In the case of furnishing inaccurate particulars of income, the onus is on the Revenue to,

prove that the assessee had furnished the inaccurate particulars, while in the case of

concealment of particulars of income, where the Explanation (1) is applicable, the onus is on

the assessee to prove that he has not concealed the particulars of income;

(iii) The AO failed to discharge his onus as he was not sure at the initiation of penalty u/s

271(1)(c) for which specific charge penalty has been initiated by the Assessing Officer. Even

while levying the penalty also, the Assessing Officer simply relied on the explanation to

Section 271(1)(c) even though he levied the penalty for furnishing the inaccurate particulars

of income. This is apparent from the provisions of Section 271(1)(c) that explanation of

Section 271(1)(c) is not applicable in case inaccurate particulars are furnished. Therefore the

basis of levy of penalty itself is not correct (New Sorathia Engineering Co (2006) 282 ITR

642 (Guj) followed)

Hon’ble Kolkata ITAT In the case of Uma Shankar Agarwal Vs DCIT in ITA Nos.1831

to 1835/Kol/2009 wherein assessee therein challenged the legality of Penalty Order on the

ground of “No satisfaction” and “Show cause Notice without specific charge”, the Bench vide

Order dated 20.01.2016 held penalty unsustainable in law for the reasons as elaborately

discussed in Para-9 to 10 of the said Order.

Hon’ble ITAT , Kolkata Bench in the case of Suvaprasanna Bhatacharya Vs ACIT in

ITA No.1303/Kol /2010 vide Order dated 06-11-2015 deleted penalty levied under

section 271(1)(c) on the ground of “No Satisfaction” recorded in the assessment order and

Notice being issued on both the charges without specifying the exact charge. S. 271(1)(c): A

penalty notice u/s 274 which does not strike out the irrelevant portion & which does not

specify whether the penalty is for “concealment” or for “furnishing inaccurate particulars”

renders the penalty order void

Page 16

Orbit Enterprises vs. ITO (ITAT Mumbai) vide order dated September 1, 2017 has

held

S. 271(1)(c)/ 292BB: "concealment of particulars of income" and "furnishing of inaccurate

particulars of income" referred to in s. 271(1)(c) denote two different connotations. It is

imperative for the AO to make the assessee aware in the notice issued u/s 274 r.w.s.

271(1)(c) as to which of the two limbs are being put-up against him. The failure to do so is

fatal to the penalty proceedings. The argument that the assessee was made aware of the

specific charge during the proceedings is of no avail. S. 292BB does not save the penalty

proceedings from being declared void.

Hon’ble ITAT, Mumabi Bench in the cases of ACIT Vs Deepesh M. Panjwani in ITA No.

6330/Mum/2012 & 5878/Mum/2012 while examining the validity of Penalty order in the

light of objection raised by the assessee regarding the validity of Penalty Notice issued on the

basis of both the charges vide Order dated 18.03.2016 placing reliance to the Judgments in

the cases of Manjunath Cotton & Ginning Factory held penalty to be unsustainable in law.

The illegality in the Notice cannot be saved by recourse to section 292BB of the Act, as was

held by the ITAT, Mumbai Bench in the case of 'Dr. Sarita Milind Davare Vs ACIT' in ITA

No. 2187/Mum/2014 wherein in Para-7 of the order this plea was taken by the revenue

before the ITAT to counter the ratio of Manjunatha referring to the order passed by the

Bangalore Bench in the case of Shri K. Prakash Shetty wherein it was held that section

292BB would not come to the rescue of the revenue when the Notice was not in substance

and in conformity with or according to the intent of the Act. Therefore, it cannot be said

that section 292BB can validly be pressed into service in respect of such a jurisdictional

mistake.

Thus, the aforesaid judgements especially when they are being followed by Honble ITAT’S

which are considered as temple of knowledge have clearly laid down the law that in case

the notice issued u/s 274 for imposing penalty u/s 271(1)( c) or the order passed wherein

penalty u/s 271(1)(C ) is imposed has ambiquity in it regarding whether it is for concealment

of income or for furnishing of in accurate particulars of income, the same is liable to be

delated.

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So next time whenever dealing with penalty u/s 271(1)( c) do try to first search for a

question mark in the notice as well as in the order. If there arises a simple question that is it

For Concealment of Income or of Furnishing of inaccurate particulars of Income? The question

itself will provide you the solution for getting the penalty deleted.

CA. Prarthna Jalan

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All About GST Refund

One should be conversant about who can claim refund in GST. The following are the most common refund

rules under GST:

Tax paid on inward supply of goods and/or services which have been exported or on inputs or

input services used in goods and/or services exported. Please note, that if the goods are subjected to

export duty, refund will not be allowed.

Unutilized input tax credit due to output supplies being exports or zero-rated supplies

Unutilized input tax credit due to inverted duty structure. This is when the rate of tax on

inputs is higher than the rate of tax on output supplies. Please note, that in this case, refund is not

applicable when supplies are NIL rated or fully exempt. GST Refund Process

Application for Refund-

A person claiming refund of tax or interest or any other amount paid must file an application for refund in

Form GST RFD-1 before the expiry of 2 years from the ‗relevant date‘. The ‗relevant date‘ in each scenario of

refund is given below:

Goods exported by sea or air – Date on which the ship or aircraft in which the goods are loaded,

leaves India

Goods exported by land – Date on which the goods pass the frontier

Goods exported by post – Date of dispatch of goods by the concerned post office

Services exported, where the supply of service has been completed prior to the receipt of

payment – Date of receipt of payment

Services exported, where the payment has been received in advance, prior to the date of

issue of invoice – Date of issue of invoice

Unutilized input tax credit – End of the financial year in which the claim for tax refund arises

Note: A claim for refund of the balance in the electronic cash ledger must be made through the relevant

monthly return, i.e. Form GSTR-3b in case of a regular dealer, and Form GSTR-4A in case of a

composition dealer.

The documents required for the refund are as follows:

If the amount claimed as tax refund is less than INR 5 Lakhs – The person needs to file a

declaration, based on the documents or other evidence available with him, certifying that the incidence of

tax or interest being claimed as refund has not been passed on to another person.

If the amount claimed as refund is more than INR 5 Lakhs – The application for refund must be

accompanied by:

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o Documentary evidence to establish that the refund is due to the person.

o Documentary or other evidence to establish that the amount was paid by him/her, and that the

incidence of the tax or interest has not been passed on to another person.

Order for Refund

If the refund is on account of export of goods and/or services, the authorised officer will refund 90%

of the total amount claimed as refund on a provisional basis in Form GST RFD-4. Thereafter, after due

verification of the documents furnished, the officer will issue an order for final settlement of the refund

claim.

Provisional refund will be granted subject to the following conditions:

The person claiming refund has not been prosecuted for tax evasion of an amount exceeding Rs. 250

Lakhs during the preceding 5 years.

The person‘s GST compliance rating is not less than 5 on a scale of 10.

No pending appeal, review or revision exists on the amount of refund.

If the officer is satisfied that the whole or part of the amount claimed as refund in the application is

refundable, he will issue an order for the refund in Form GST RFD-5. This will be done within 60 days

from the date of receipt of application. If the refund is not sanctioned within 60 days, interest on the

refund amount will be paid for the period after 60 days, till the date of actual refund of tax.

Note:No refund shall be made if the amount claimed as refund is less than Rs. 1,000.

Best Wishes

Deepti Agarwal

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INSOLVENCY AND BANKRUPTCY CODE

BASICS ABOUT FILING AN APPLICATION AND SUBSEQUENT PROCEDURE

FOR INDIVIDUALS & PARTNERSHIP FIRMS

1. APPLICABILITY:

This applies to matters relating to insolvency & bankruptcy of individuals & partnership firms where

amount of default is not less than Rs. 1000/-.

However, the Central Government may specify minimum amount of default of higher value not more than

Rs. 100000/-.

2. Adjudicating Authority:

Here Adjudicating Authority means Debt Recovery Tribunal constituted u/s 3(1) of the Recovery of Debts Due

to Banks and Financial Institution Act, 1993.

3. Resolution Professional/Bankruptcy Trustee:

Here resolution professional/bankruptcy trustee means Insolvency Professional (IP) enrolled with an

Insolvency Professional Agency (IPA) and registered with Insolvency and Bankruptcy Board of India (IBBI)

under the Insolvency and Bankruptcy Code, 2016.

4. WHO CAN MAKE INSOLVENCY APPLICATION?

(a) A Debtor (u/s 94):

(i) A Debtor who commits a default may apply for insolvency either personally or through a Resolution

Professional (IP).

(ii) In respect to a Partnership Firm- All or a majority of the partners of the firm shall file the application

jointly.

(iii) A Debtor is not entitled to make an application if he is:

a) An undischarged bankrupt

b) Undergoing a fresh start process under Chapter II, Part III, of the IBC, 2016.

c) Undergoing an insolvency resolution or a bankruptcy process

d) An application under this code has been admitted during the period of 12 months preceding the date

of submission of this application.

(iv) An application by Debtor can be submitted only in respect of debts which are not excluded debts

u/s 79(15).

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(b) A Creditor (u/s 95):

(i) A Creditor may file by himself or jointly with other creditor or through a Resolution Professional

(IP).

(ii) In relation to partnership debts, a creditor may apply against one or more partners or the firm.

(iii) A Creditor can make application only after the failure by the debtor to pay the debt within a

period of 14 days of the service of the notice of demand.

(iv) The creditor shall also provide a copy of the application to the debtor.

(v) If application is made against different partners in the same firm, the application shall be

presented in or transferred to the Adjudicating Authority in which the first mentioned application is

pending for adjudication.

5. EFFECT OF APPLICATION (u/s 96):

Interim Moratorium:-

Interim Moratorium shall commence on date of the application in relation to all debts & shall cease to

have effect on date of admission of application.

6. RESOLUTION PROFESSIONAL REPORT (u/s 99):

The Resolution Professional (IP) shall examine the application u/s 94 or 95 and submit a report to the

Adjudicating Authority, within 10 days of his appointment, recommending for approval or rejection of the

application.

7. ADMISSION OR REJECTION OF APPLICATION (U/S 100):

The Adjudicating Authority shall within 14 days from the date of submission of the report by IP pass an

order either admitting or rejecting the application.

8. REJECTION OF APPLICATION & INITIATION OF BANKRUPTCY (u/s 121):

The initiation of a bankruptcy process on failure of the insolvency resolution process is not automatic,

and an application needs to be filed within the prescribed time.

Who can file an application u/s 121:-

A Creditor individually or jointly with other creditors or a debtor may file an application for bankruptcy of

a debtor in the following circumstances:-

a) When application is rejected on the basis of the report submitted by the Resolution Professional

(IP) that the application was made with the intention to defraud the creditor or the Resolution Professional

(IP) u/s 100 (4).

b) Where the Adjudicating Authority rejects the repayment plan u/s 115(2).

c) Where the repayment plan comes to end prematurely u/s 118(3).

Where the debtor is a firm, the application may be filed by any of its partners.

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9. TIME LIMIT:

An application for bankruptcy shall be filed within a period of 3 months of the date of the order passed by

the Adjudicating Authority in the above mentioned sections.

Application once made by the debtor or creditor shall not be withdrawn without the permission of the

Adjudicating Authority.

10. EFFECT OF APPLICATION (u/s 124):

Interim Moratorium:-

Interim Moratorium shall commence on date of the application in relation to all debts & shall cease to

have effect on the bankruptcy commencement date.

In case of a firm, the interim moratorium shall operate against all the partners of the firm as on the date

of the making of the application.

11. BANKRUPTCY ORDER (U/S 126):

Adjudicating Authority pass a bankruptcy order within 14 days of receiving the confirmation or

nomination of the bankruptcy trustee (IP) u/s 125.

The order shall continue to have effect till the debtor is discharged u/s 138.

CA. Alka Choudhary

B. Com, LLB, FCA, DISA, IP (IBBI)

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GLIMPSES OF DECEMBER-19 ACTIVITIES

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AGRA BRANCH IN MEDIA AND OTHER SEMINARS

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