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TMI Blog2018 (5) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... this case the assessment u/s. 143(3)/147 of the Act was completed on 10.12.2010 determining total income at Rs. 2,28,03,156/- against assessee's returned income of Rs. 7,70,610/- and initiated penalty proceedings u/s. 271(1)(c) of the Act separately. During the course of assessment proceedings, addition was made on account of bogus expenses of land filing, other expenses disallowed, under valuation of stock and bogus purchase totaling Rs. 2,28,03,156/-. The assessee was served notice u/s. 274 read with section 271 of the Act on 10.12.2010. In response, the assessee made submission on 28.10.2014 referring to various case laws. The same was duly considered by the AO and found the case laws referred by the assessee are not squarely applicable to the assessee's case. On 17.12.2014 again a letter was issued to the assessee for giving further opportunity of being heard fixing the case on 29.12.2014. However, no submissions were made by the assessee. In view of the above, according to AO, it is a fit case for levy of penalty u/s. 271(1)(c) of the Act and he imposed penalty of Rs. 4,05,246/- being 100% of tax sought to be evaded. Aggrieved, assessee preferred appeal before Ld. CIT(A), who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 6. 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 income must be in specific terms and words and that satisfaction of AO must reflect from the order either with expressed words recorded by the AO or by his overt act and action. In our view this decision is on the question of recording sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Assessee by name M/s.Veerabhadrappa Sangappa & Co., in ITA NO.5020 OF 2009 which was an appeal by the revenue. The Tribunal held that on perusal of the notice issued under Section 271(1)(c) of the Act, it is clear that it is a standard proforma us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the present case there is no whispher in the order of assessment on this aspect. We have pointed out this aspect in the earlier part of this order. Hence, this decision will not be of any assistance to the plea of the revenue before us. Even otherwise this d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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