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TMI Blog2019 (2) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... e is against the order of the Ld. CIT(A)-15, Kolkata dated 19.02.2018 for AY 2009-10 in confirming the action of AO in imposing penalty u/s. 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 2. Briefly stated facts as observed by the AO are that during the course of assessment, the assessee was asked several times to comply with the notices issued by the Department and also to explain why the cash deposit in his Bank account should not be treated as concealed income from undisclosed source of fund. Since there was no compliance from the part of the assessee, the AO completed the assessment as per best judgment assessment u/s. 144/147 of the Act and added the same to the income of the assessee. Thereafter, the AO initiated penalty proceeding u/s. 271(1)(c) of the Act and imposed penalty of ₹ 8,60,557/- @ 100% of tax sought to be evaded for concealment. Aggrieved, assessee preferred an appeal before the Ld. CIT(A), who confirmed the action of AO. Aggrieved, assessee preferred this appeal before us. 3. We have heard rival submissions and gone through the facts and circumstances of the case. At the outset itself, it has been brought to our notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein the Hon ble Bombay High Court following the decision of the Hon ble Karnataka High Court in the case of CIT vs Manjunatha Cotton and Ginning factory (supra) came 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. Our attention was 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. 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 01.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r mere non-striking of the inaccurate portion cannot by itself invalidate the notice. The ITAT Mumbai Bench in the case of Dhanraj Mills Pvt.Ltd. (supra) followed the decision rendered by the Jurisdictional Hon ble Bombay High court in the case of Kaushalya (supra) and chose not to follow decision of Hon ble Karnataka High Court in the case of Manjunatha Cotton Ginning Factory (supra). Reliance was also placed by the ITAT Mumbai in this decision on the decision of Hon 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt held in the negative and against the revenue on both the questions. Therefore the decision rendered by the ITAT Mumbai in the case of Earthmoving Equipment Service Corporation (supra) is of no assistance to the plea of the revenue before us. 11. In the case of M/S.Maharaj Garage Co. Vs. CIT dated 22.8.2017 referred to in the written note given by the learned DR, which is an unreported decision and a copy of the same was not furnished, the same proposition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se u/s 274 of the Act does not specify the charge against the assessee as to whether it is for concealing particulars of income or furnishing inaccurate particulars of income. The show cause notice u/s 274 of the Act does not strike out the inappropriate words. In these circumstances, we are of the view that imposition of penalty cannot be sustained. The plea of the ld. Counsel for the assessee which is based on the decisions referred to in the earlier part of this order has to be accepted. We therefore hold that imposition of penalty in the present case cannot be sustained and the same is directed to be cancelled. 6. Respectfully following the aforesaid order of the Hon ble Calcutta High Court in the case of Dr. Murari Mohan Koley, supra and coordinate bench of this Tribunal, we, therefore, hold that the penalty imposed by the AO and confirmed by the Ld. CIT(A) does not stand and, therefore, we dismiss the penalty imposed by the AO and confirmed by the Ld. CIT(A). This ground of appeal of Assessee is allowed. 7. The last ground of appeal is general in nature, therefore, requires no adjudication, hence the same is dismissed. 8. In the result, appeal of assessee is partl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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