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TMI Blog2018 (10) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice issued by the Assessing Officer 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)(c) 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 - ITA No.5206/Del/2016 - - - Dated:- 1-10-2018 - Shri R. K. Panda, Accountant Member And Ms. Suchitra Kamble, Judicial Member For the Assessee : Shri Ashok Kumar Jain, CA For the Department : Shri S. S. Rana, CIT-DR ORDER PER R. K. PANDA, AM : This appeal filed by the assessee is directed against the order dated 03.08.2016 of the CIT(A)- 29, New Delhi relating to asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153A, the assessee filed his return of income on 10.10.2013 declaring total income of ₹ 43,95,120/-. In the computation of income filed along with return of income, the assessee has submitted as under :- The other income of ₹ 1,50,000/- declared under the head Income from other sources is to cover up any addition on account of any entry in the seized material seized on account of search. 4. Since the assessee himself admitted of having earned income to the tune of ₹ 1,50,000/- and has declared the same under the head Income from other sources , the Assessing Officer held that the assessee is liable for penalty u/s 271AAA on the undisclosed income of ₹ 1,50,000/-. Similarly, since the assessee had declare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder which limb of provisions of section 271(1)(c) the Assessing Officer has levied penalty since the said show-cause notice issued u/s 274 did not specify the charge against the assessee as to whether it was for concealing the particulars of income or for furnishing inaccurate particulars of income. Therefore, the penalty order passed u/s 271(1)(c) in pursuance to the said notice deserves to be set-aside. For the above proposition, he relied on the following decisions :- i. SSA S Emerald Meadows 242 Taxman 180. ii. Dilip N Shroff, 291 ITR 519. iii. Manjunatha Cotton Ginning Factory, 359 ITR 565. iv. Samson Perinchery, 392 ITR 4. v. Sahiwal Investment Trading Co., ITA No.4913/Del/2015 dated 18.07.2018. vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the decision of the Hon ble Karnataka High Court in the case of CIT vs. Manjunatha Cotton Ginning Factory reported in 359 ITR 565. 12. Referring to the decision of the Hon ble Bombay High Court in the case of CIT vs. Smt. Kaushalya reported in 216 ITR 660 he submitted that the Hon'ble High Court in the said decision has held that mere mistake in language used or mere non-striking off of inaccurate portion cannot by itself invalidate the notice u/s 274 of the I.T. Act. It was accordingly held that the penalty orders passed by the ITO for assessment years 1968-69 to 1969-70 were perfectly valid and there was no justification for quashing the same on ground of absence of jurisdiction. He also relied on various other decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n struck off and it is a printed notice. Even the last line of the said notice only speaks of section 271 and does not even mention of section 271(1)(c) of the I.T. Act. We find an identical issue had come up before this Bench of the Tribunal in the case of Sahiwal Investment Trading co. vs. ITO vide ITA No.4913/Del/2015 for assessment year 2006-07 order dated 18.07.2018 to which both of us parties. We find the Tribunal in the said decision while allowing the additional ground filed by the assessee has decided the issue in favour of the assessee by observing as under :- 12. Additional Ground No. (ii) is relating to absence of specific charge pointing out in the notice. It is pertinent to note here that the penalty order is based o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantial question of law arises in this appeal for determination by this Court. The appeal is accordingly dismissed. Thus, Additional Ground No. (ii) of the assessee's appeal is allowed. Since the inception of the notice issued u/s 271(1)(c) has become null and void, there is no need to comment on merit of the case. The Penalty u/s 271(1)(c) of the Act is quashed. 16. Since in the instant case also the inappropriate words in the penalty notice has not been struck off and the notice does not specify as to under which limb of the provisions, the penalty u/s 271(1)(c) has been initiated, therefore, we are of the considered opinion that the penalty levied u/s 271(1)(c) is not sustainable and has to be deleted. Although the ld ..... X X X X Extracts X X X X X X X X Extracts X X X X
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