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2022 (8) TMI 431 - AT - Income TaxPenalty u/s 271B - Non specification of clear fault/charge - HELD THAT - As penalty notice did not explicitly convey to the assessee the specific fault/charge the assessee is being proceeded for levy of penalty. Resultantly, the show cause notice is found to be defective/invalid, and therefore it is held to be bad in law. For doing that we rely on the decision of the Hon ble Karnataka High Court in the case of CIT vs Manjunatha Cotton and Ginning Factory 2013 (7) TMI 620 - KARNATAKA HIGH COURT and the Department s SLP against it has been dismissed by the Hon ble Supreme Court 2016 (8) TMI 1145 - SC ORDER . We also find that Hon ble Karnataka High Court in the case of CIT Vs. SSA s Emerald Meadows 2015 (11) TMI 1620 - KARNATAKA HIGH COURT endorsed the same view in Manjunatha Cotton and Ginning Factory 2013 (7) TMI 620 - KARNATAKA HIGH COURT . As well as the binding decision of the Full bench decision of the Hon ble jurisdiction High Court s in the case of Mohd. Farhan A. Shaikh 2021 (3) TMI 608 - BOMBAY HIGH COURT we direct the deletion of the penalty levied in this case. Appeal of assessee allowed.
Issues:
1. Confirmation of penalty under section 271B of the Income Tax Act, 1961. 2. Failure to appreciate the exemption from audit under section 44AB of the Income Tax Act, 1961. 3. Validity of the order passed by the Commissioner of Income Tax (Appeals). Issue 1: Confirmation of penalty under section 271B: The appellant contested the penalty levied under section 271B of the Income Tax Act, arguing that the provisions of this section were not applicable to their case. The appellant highlighted that the penalty was confirmed incorrectly and should be deleted. The appellate tribunal noted a substantial legal issue raised by the appellant, emphasizing the importance of deciding this issue first. The tribunal considered the appellant's argument in light of a relevant judgment by the Jurisdictional High Court of Mumbai and other legal precedents. The tribunal examined the show cause notice issued by the assessing officer and concluded that it did not specify the fault or charge against which the penalty was being imposed, rendering the notice defective and invalid. Relying on legal precedents, including decisions by the High Courts and the Supreme Court, the tribunal held that the defective notice vitiated the penalty itself. Consequently, the tribunal directed the deletion of the penalty levied under section 271B. Issue 2: Failure to appreciate the exemption from audit under section 44AB: The appellant also raised the issue of the failure to appreciate that their total turnover did not exceed the threshold limit for audit under section 44AB of the Income Tax Act, 1961. The appellant argued that they were not liable to get their books audited under the provisions of the Act. However, before addressing this issue on its merits, the tribunal prioritized the legal issue raised regarding the penalty under section 271B. Ultimately, the tribunal's decision to delete the penalty rendered further discussion on this issue unnecessary, as the penalty was the primary focus of the appeal. Issue 3: Validity of the order passed by the Commissioner of Income Tax (Appeals): The appellant contended that the order passed by the Commissioner of Income Tax (Appeals) was bad in law and contrary to the provisions of the law and facts. However, the tribunal's decision to delete the penalty under section 271B effectively resolved the primary grievance raised by the appellant. As a result, the tribunal allowed the appeal of the assessee based on the legal grounds related to the penalty, without delving deeper into the specific contentions regarding the Commissioner's order. The tribunal's ruling on the penalty issue overshadowed the need for further examination of the Commissioner's order, leading to the overall allowance of the assessee's appeal. In conclusion, the Appellate Tribunal ITAT Mumbai, in its judgment, focused on the legal issue concerning the confirmation of the penalty under section 271B of the Income Tax Act, 1961. By emphasizing the importance of a valid show cause notice and relying on legal precedents, the tribunal directed the deletion of the penalty. This decision rendered further discussions on the other issues raised by the appellant unnecessary, resulting in the allowance of the appeal solely based on the penalty issue.
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