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TMI Blog2018 (4) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee filed his return of income on 07.06.2005 declaring a total income of ₹ 87,813/- and thereafter filed a revised return on 11.07.2005 showing total income of ₹ 1,56,360/-. Return was processed on 09.05.2006 and the case was selected for scrutiny and notices u/s. 143(2) and 142(1) of the Act dated 03.05.2006 were issued and served on the assessee. The assessment order u/s. 143(3) of the Act was passed on 31.12.2007 determining the total income at ₹ 10,56,150/-. During the course of assessment proceedings, addition was made for an amount of ₹ 9,14,841/- on account of disallowance of expenses personal in nature of ₹ 30,769/-, depreciation disallowed of ₹ 36,670/-, bogus sundry creditors of ₹ 1,36,795/-, other source of ₹ 15,056/- and Long Term Capital Gain of ₹ 6,95,551/-. On appeal, the Ld. CIT(A) confirmed the additions. Subsequently, the assessee was served notice u/s. 271(1)(c) of the Act on 31.12.2007. Thereafter considering the assessee s submission, the AO imposed penalty of ₹ 2,98,117/- being 100% tax sought to be evaded, as according to him, the assessee could not offer any justifiable explanation regarding the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 05.01.2017 wherein the Hon ble Bombay High Court following the decision of the Hon ble Karnataka High Court in the case of CIT vs Manjunatha Cotton and Ginning factory (supra) came to the conclusion that imposition of penalty on defective show cause notice without specifying the charge against the assessee cannot be sustained. Our attention was also drawn to the decision of ITAT in the case of Suvaprasanna Bhattacharya vs ACIT in ITA No.1303/Kol/2010 dated 06.11.2015 wherein identical proposition has been followed by the Tribunal. 5. Ld. DR vehemently opposed the submission of the Ld. AR and has cited various case laws to oppose the case laws suggested by the Ld. AR. We note that all the case laws cited before us by the Ld. DR has been dealt with elaborately by the Coordinate Bench of this Tribunal in the case of Jeetmal Choraria Vs. ACIT, ITA No. 956/Kol/2016 for AY 2010-11 dated 01.12.2017, wherein the Tribunal has noted as under: 7. The learned DR submitted that the Hon ble Calcutta High Court in the case of Dr.Syamal Baran Mondal Vs. CIT (2011) 244 CTR 631 (Cal) has taken a view that Sec.271 does not mandate that the recording of satisfaction about concealment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of Hon ble Karnataka High Court in the case of Manjunatha Cotton Ginning Factory (supra). Reliance was also placed by the ITAT Mumbai in this decision on the decision of Hon ble Patna High court in the case of CIT v. Mithila Motor's (P.) Ltd. [1984] 149 ITR 751 (Patna) wherein it was held that under section 274 of the Income-tax Act, 1961, all that is required is that the assessee should be given an opportunity to show cause. No statutory notice has been prescribed in this behalf. Hence, it is sufficient if the assessee was aware of the charges he had to meet and was given an opportunity of being heard. A mistake in the notice would not invalidate penalty proceedings. 10. In the case of Earthmoving Equipment Service Corporation (supra), the ITAT Mumbai did not follow the decision rendered in the case of Manjunatha Cotton Ginning Factory (supra) for the reason that penalty in that case was deleted for so many reasons and not solely on the basis of defect in show cause notice u/s.274 of the Act. This is not factually correct. One of the parties before the group of Assessees before the Karnataka High Court in the case of Manjunatha Cotton Ginning (supra) was an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. Vs. CIT dated 22.8.2017 referred to in the written note given by the learned DR, which is an unreported decision and a copy of the same was not furnished, the same proposition as was laid down by the Hon ble Bombay High Court in the case of Smt.Kaushalya (supra) appears to have been reiterated, as is evident from the extracts furnished in the written note furnished by the learned DR before us. 12. In the case of Trishul Enterprises ITA No.384 385/Mum/2014, the Mumbai Bench of ITAT followed the decision of the Hon ble Bombay High Court in the case of Smt.Kaushalya (supra). 13. In the case of Mahesh M.Gandhi (supra) the Mumbai ITAT the ITAT held that the decision of the Hon ble Karnataka High Court in the case Manjunatha Cotton Ginning (supra) will not be applicable to the facts of that case because the AO in the assessment order while initiating penalty proceedings has held that the Assessee had concealed particulars of income and merely because in the show cause notice u/s.274 of the Act, there is no mention whether the proceedings are for furnishing inaccurate particulars or concealing particulars of income, that will not vitiate the penalty proceedings. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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