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TMI Blog2018 (4) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the Ld. Commissioner of Income Tax (Appeals)-18, New Delhi dated 7.12.2015 pertaining to assessment year 2008-09. 2. The Assessee has raised so many grounds, but the only effective ground is sustaining the order imposing penalty under section 271(1) of the Act amounting to ₹ 8,55,403/-. However, during the hearing, the Ld. Counsel of the Assessee has filed an Application dated 12.4.2018 of the assessee seeking permission to raise additional ground, in view of the judgment of the Hon ble Supreme Court of India in the case of NTPC vs. CIT reported in 229 ITR 383 and the decision in the case of M/s Jute Corporation of India Ltd. vs. CIT reported in 187 ITR 688 (SC). The additional ground raised by the assessee read as under:- That the Commissioner of Income Tax (Appeals) has grossly erred both in law and on facts in sustaining the penalty so imposed under section 271(1) of the Act, by failing to appreciate that the show cause notice so issued was defective, as there was no specific charge labeled in the said show cause notice and as such, the penalty deserves to be quashed. 3. On the contrary, Ld. DR relied upon the orders of the authorities below and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant records, especially the orders of the revenue authorities alongwith the provisions of law as well as the case law cited by the Ld. Counsel of the Assessee. I have also perused the Notice dated 01.12.2010 issued by the AO for initiation of penalty and directing the assessee to appear before him. For the sake of convenience, some of the contents of the penalty Notice dated 01.12.2010 are reproduced as under:- .. it appears to me that you:- * have without reasonable cause failed to comply with a notice under section 142(1)/143(2) of the Income Tax Act, 1961 dated . * have concealed the particulars of your income or furnished inaccurate particulars of such income in terms of explanation 1,2,3,4 and 5. . You are hereby required to appear before me at 11.00 AM/PM on 13.1.2010 and show cause why an order imposing a penalty on you should not be made under section 271 of the Income Tax Act, 1961. If you do not wish to avail yourself of this opportunity to being heard in person or through authorized representative you may show cause in writing on or before the said date which will be considered before any such order is made under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 AO for initiating the penalty and directing the assessee to appear before him at 11.30 AM on 26/04/2013 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 AO to the assessee, we are of the view that the AO 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 AO 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. Vs. M/s SSA s Emerald Meadows 2015 (11) TMI 1620 Karnataka High Court has held that Tribunal has correctly allowed the appeal filed by the assessee holding the notice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty of amount should not be made u/s. 271(1)(c) of the I.T. Act, 1961. After perusing the notice dated 31.12.2007 issued by the AO to the assessee, we are of the view that the AO has initiated the penalty for furnishing inaccurate particulars of income/concealment of income, but in the penalty order dated 06.11.2009 he has stated that he is satisfied that the assessee has furnished the inaccurate particulars of income. 7.1 However, the Ld. CIT(A) 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 Ld. CIT(A) is reproduced as under:- 5.3.1 The above findings of the Ld. CIT(A) clearly establishes that the appellant has concealed the income of ₹ 26,50,500/- and did not declare in the return of income inspite of admitting a disclosure of ₹ 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 AO was fully justified in levying the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of this Court rendered in the case of Commissioner of Income Tax vs. Manjunatha Cotton and Ginning Factory (2013) (7) TMI 620- Karanataka High Court. 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. ii) CIT Anr. Vs. M/s SSA s Emerald Meadows Hon ble Supreme Court of India reported in 2016 (8) TMI 1145 Supreme Court. The Apex Court held that High Court order confirmed (2015) (11) TMI 1620 (Supra) Karnataka High Court. Notice issued by AO 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 Decided in favour of assessee. 8.1 In the background of the aforesaid discussions and respectfully following the precedents, we delete the penalty in dispute and decide the issue in favor of the assessee and against the Revenue. 7. Keeping in view of the aforesaid discussions and respectfully following the aforesaid prece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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