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TMI Blog2018 (9) TMI 1309X X X X Extracts X X X X X X X X Extracts X X X X ..... leased to dismiss the same on 19.02.2014. However, the said order was infact received by the assessee only on 29.03.2014. The Ld. AR submitted that last date for filing the appeal before the Tribunal was on 28.05.2014, however, since the assessee filed this appeal only on 18.01.2018 there is a delay of around 1330 days in filing the appeal. The Ld. AR brought to our notice the back-ground for causing the delay and submitted that after receipt of the order of Ld. CIT(A) dated 19.02.2014 on 29.08.2014 the assessee handed over the same order to Shri V. K. Tiwari, FCA to take steps as per law. However, the said Ld. AR filed a fresh appeal again before the Ld. CIT(A) since ground no. 2 of the original appeal was not adjudicated by the Ld. CIT(A) in the order passed on 19.02.2014 and the said Ld. AR Shri Tiwari was of the bonafide belief that such an error can be rectified only by filing fresh appeal. However, the Ld. CIT(A) treated the fresh appeal filed by the assessee as a rectification/revision application and passed rectification order dated 13.05.2016 dismissing the appeal/revision/rectification application. After receipt of this order dated 13.05.2016 the assessee was advised/diss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condonation of delay observed that substantial justice is of prime importance. Similar were the ruling of the Hon'ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy 1998 (7) SCC 123 (SC) and Shankarrao Vs. Chandrasenkunwar (1987) suppl. SCC 338 (SC). In the light of the aforesaid judicial precedent and taking into consideration the fact that because of the wrong advice given by the Ld. AR Shri Tiwari caused the assessee in not preferring an appeal before this Tribunal. Therefore, the assessee cannot be faulted for not preferring an appeal on time. Taking into consideration the aforesaid facts given for causing the delay, we are of the opinion that the delay should be condoned and we do so and admit the appeal for adjudication. 4. We have heard both the parties and perused the material available on record. At the time of hearing Ld. Counsel for the assessee drew our attention to the notice issued by AO u/s. 274 r.w.s. 271 of the Act dated 29.11.2012 for the AY 2010-11 which is placed at page 1 of the paper book wherein we notice that the notice has been issued before imposing penalty does not contain the specific charge against the assessee namely as to whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also drawn to a recent judgment of Hon'ble Calcutta High Court in the case of Pr. CIT- 19 Vs. Dr. Murari Mohan Koley, ITAT No. 306 of 2017, GA No.2968 of 2017 dated 18.07.2018 wherein also the Hon'ble High Court has upheld the above proposition of law and dismissed the appeal of the revenue. 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 satisfaction and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 84] 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 used by the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) 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 any assistance to the plea of the revenue before us. Even otherwise this decision does no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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