9911796707
TMI Blog2018 (10) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... r furnishing of inaccurate particulars. - Decided in favour of assessee. - ITA No. 275/VIZ/2018 And C.O. No. 51/VIZ/2018 - - - Dated:- 5-10-2018 - SHRI V. DURGA RAO, HON BLE JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, HON BLE ACCOUNTANT MEMBER For The Assessee : Shri G.V.N. Hari Advocate. For The Department : Shri P.S. Murthy Sr.DR ORDER PER V. DURGA RAO, JUDICIAL MEMBER This appeal by the Revenue and the Cross objection by the assessee are directed against the order of Commissioner of Income Tax (Appeals)-3, Visakhapatnam, dated 26/02/2018 for the Assessment Year 2013-14. 2. Facts of the case, in brief, are that assessee is an individual and Managing Director of M/s. Meridian Promoters Pvt. Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10/2015 by making the addition in respect of long term capital gain of ₹ 90,93,422/-; cash credits of ₹ 5,83,000/- from the unknown source; income from salary of ₹ 18,00,000/- and income from house property of ₹ 67,200/-. Accordingly, the Assessing Officer has assessed the income of the assessee of ₹ 1,15,43,620/-. Subsequently, the Assessing Officer has issued a notice under section 274 read with sec. 271(1)(c) of the Act on 15/10/2015. The assessee has not complied with the notice issued by the Assessing Officer. Subsequently, the Assessing Officer sent another letter dated 18/04/2016 calling explanation from the assessee. In response to the notice, the assessee asked the Assessing Officer for one month time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. On the other hand, ld. counsel for the assessee has relied on the order of the ld. CIT(A). 7. We have heard both the sides, perused the material available on record and orders of the authorities below. 8. The ld. CIT(A) has considered the legal ground raised by the assessee before him i.e. issuance of penalty notice dated 15/10/2015 and gave a finding that Assessing Officer has not struck off the portion which is not applicable while initiating the penalty proceedings, and by following the decision of Hon'ble Jurisdictional High Court in the case of Smt. Baisetti revathi (supra), cancelled the penalty levied by the Assessing Officer. We have also perused the penalty notice issued by the Assessing Officer dated 15/10/2015 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) and issued show cause notice in the printed proforma of penalty. The AO has issued the penalty notice which reads as under:- WHEREAS in the course of the proceeding before me for the Asst. Year 2007-08 it appears to me that you have concealed the particulars of your some or furnished inaccurate particulars of such income. 6.1. From the notice issued by the AO, it is observed that the assessing officer had issued the notice for concealment of income or for furnishing of inaccurate particulars. As per the notice, the assessing officer was not sure of which limb of the offence he sought the explanation from the assessee, whether it was for the concealment of income or for furnishing of inaccurate particulars. As per the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC). Ld. DR s argument that the case is distinguishable on facts is not acceptable since the Ld. DR relied on the passing observation of the Hon ble High Court of AP. In the assessee s case, the issue is the defective notice u/s 271(1)(c) but not the penalty order. Unless the notice issued u/s 271(1)(c) is valid the penalty order cannot be held to be valid. The assessing officer did not strike off the irrelevant column in the notice and made known the assessee whether the penalty was initiated for the concealment of income or for furnishing the inaccurate particulars. In the assessment order also the AO simply recorded that the penalty proceedings u/s 271(1)(c) are initiated separately. Neither in the assessment order nor in the penalty no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts, the Coordinate Bench of ITAT, Visakhapatnam in ITA No.229/Viz/2015 in the case of Narayana Reddy Enterprises, following the order of the Coordinate Bench in the case of Smt. Makina Annapurna Vs. ITO, Visakhapatnam in ITA Nos.604 605/Vizag/2014 dated 2.2.2017 held that non-striking of the irrelevant column renders the notice issued u/s 271 as invalid. Respectfully, following the decision of the Hon ble AP High Court cited supra and the decision of this Tribunal cited (supra), we hold that the notice issued u/s 271 is invalid and consequent penalty imposed by the AO is cancelled. 10. By respectfully following the decision of the coordinate bench of the tribunal in the case of Konchada Sreeram (supra), we find no infirmity in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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