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TMI Blog2018 (6) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... AO u/s. 271(1)(c) of the Income-tax Act, 1961 (hereinafter referred to as the Act ).. 2. In this appeal the assessee has challenged the order of Ld. CIT(A) in confirming the penalty u/s. 271(1)(c) of the Act. The facts and circumstances under which penalty u/s 271(1)(c) of the Act was imposed on the assessee by the AO are that in this case the assessment order was passed u/s. 143(3) of the Act on 28.03.2013 determining a demand of ₹ 1,61,83,060/-. The assessee preferred appeal before Ld. CIT(A), Asansol which was rejected by the Ld. CIT(A). Against the said order, assessee preferred appeal before the Tribunal, who directed to make addition on undisclosed purchases of paddy @ 10% on estimate basis. Therefore, while giving effect to the order of ITAT, the revised income of the assessee computed by the AO at ₹ 45,76,020/-, thus retaining an undisclosed income of ₹ 38,50,183/-. According to AO, the assessee had furnished inaccurate particulars of its income to the tune of ₹ 45,76,023/- within the meaning of sec. 271(1)(c) of the Act and hence, he was of the opinion that it is a fit case for imposing penalty u/s. 271(1)(c) of the Act and imposed a penalty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the present case there is no whisper 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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