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2019 (7) TMI 176 - AT - Income TaxPenalty u/s. 271(1)(c) - non striking down the irrelevant fault stated in the SCN - HELD THAT - As perusing the show cause notice issued by AO before penalty was initiated as to which specific fault of assessee he is being proceeded against i.e. for furnishing inaccurate particulars of income or concealment of income has not been spelt out specifically by striking down the irrelevant fault stated in the SCN. Finding of CIT(A) has not been challenged by the Revenue, therefore, this finding of the CIT(A) crystallizes. And moreover we have gone through the notices issued by the AO before imposing the penalty and we concur with the finding rendered by the CIT(A) that the notice does not specify the specific charge on which the assessee is being called upon to answer during the penalty proceedings which omission vitiates the notice issued before penalty and subsequent proceedings thereafter. CIT(A) rightly cancelled the penalties imposed by the AO for both the years before us. Therefore we, therefore, hold that deletion of penalty by the CIT(A) in the present case cannot be disturbed and, therefore, we confirm the order of CIT(A) and dismiss both the appeals of the Revenue.
Issues Involved:
1. Validity of penalty imposed under Section 271(1)(c) of the Income-tax Act, 1961. 2. Specificity of the charge in the show cause notice issued under Section 274 read with Section 271 of the Act. Issue 1: Validity of Penalty Imposed Under Section 271(1)(c) of the Income-tax Act, 1961 The appeals filed by the assessee challenge the orders of the CIT(A)-21, Kolkata, which deleted the penalties imposed by the AO under Section 271(1)(c) of the Income-tax Act, 1961, for the assessment years 2008-09 and 2011-12. The AO had imposed penalties on the grounds that the assessee disclosed an amount of ?91,49,905 under "Income from Other Sources" following a search and seizure operation but did not include this amount in the return filed under Section 139. The assessee included the amount in the return filed under Section 153A, prompting the AO to initiate penalty proceedings under Section 271(1)(c). The CIT(A) deleted the penalties, leading the revenue to appeal. Issue 2: Specificity of the Charge in the Show Cause Notice Issued Under Section 274 Read with Section 271 of the Act The core argument from the assessee's counsel was that the show cause notices issued under Section 274 read with Section 271 did not specify whether the penalty was for "concealment of particulars of income" or "furnishing inaccurate particulars of income." The notices contained both charges without striking out the irrelevant part, making the notices ambiguous. The counsel cited the Hon’ble Karnataka High Court's decision in CIT vs. SSA’s Emerald Meadows, which held that such ambiguity renders the penalty invalid. This view was upheld by the Hon’ble Supreme Court when the revenue's SLP was dismissed. Additionally, the Hon’ble Bombay High Court in CIT vs. Shri Samson Perinchery supported this position, stating that penalties based on defective notices are unsustainable. The revenue's representative opposed this view, citing various case laws, including decisions from the Hon’ble Calcutta High Court and ITAT Mumbai, which suggested that the specific charge need not be explicitly stated in the notice as long as the assessee was aware of the charges and given an opportunity to respond. However, the Tribunal noted that the Hon’ble Karnataka High Court's decision in Manjunatha Cotton and Ginning Factory, which required specific charges to be mentioned in the show cause notice, was more applicable. The Tribunal emphasized that where two views exist, the one favorable to the assessee should be followed. Consequently, the Tribunal found that the notices issued in this case were defective as they did not specify the exact charge, thus invalidating the penalty proceedings. The Tribunal also referenced its own prior decision in Jeetmal Choraria vs. ACIT, which supported the view that non-specific show cause notices vitiate penalty proceedings. The Tribunal concluded that since the CIT(A) found the notices defective and this finding was unchallenged by the revenue, the deletion of penalties by the CIT(A) was justified. Conclusion: The Tribunal upheld the CIT(A)'s decision to delete the penalties imposed by the AO under Section 271(1)(c) for both assessment years. The appeals by the revenue were dismissed on the grounds that the show cause notices were defective due to the lack of specificity regarding the charges, rendering the penalty proceedings invalid.
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