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TMI Blog2019 (3) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... that the inappropriate limb in the notice was not strike off. Ld. Counsel for the assessee referring to the Assessment Order submitted that the Assessing Officer stated that penalty u/s. 271(1)(c) initiated separately for concealing income. Referring to the notice and Penalty Order, Ld. Counsel for the assessee submitted that Assessing Officer did not specify charge for which the penalty proceedings were initiated but penalty was levied stating that he is satisfied that assessee has concealed particulars of income by furnishing inaccurate particulars of income within the meaning of the section. 271(1)(c) of the Act and therefore, the initiation of penalty proceedings itself is improper and not valid. Ld. Counsel for the assessee submitted that there is a complete non-application of mind by the Assessing Officer in initiating the penalty proceedings and therefore, levy of penalty is illegal, void, bad in law, initiated by non-application of mind and is without jurisdiction as the penalty notice issued by the Assessing Officer does not strike off the relevant portion thereon. 4. Ld. DR vehemently supported the orders of the Authorities below. 5. We have heard the rival submissions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 CTR 228 (SC)] and the decision of the Hon'ble Jurisdictional High Court in the case of CIT v. Samson Perinchery (supra) held that the penalty proceedings initiated by the Assessing Officer is bad in law. While holding so the Coordinate Bench held as under: "9. We have heard the rival submissions and perused the relevant materials on record. The reasons for our decisions are given below. We begin with the decisions relied on by the Ld. DR. In the case of Smt. Kaushalya & Ors. (supra), the Hon'ble Bombay High Court held: "9. We will first take up the show-cause notice dated March 29, 1972, pertaining to the assessment years 1968-69 and 1969-70. The assessment orders were already made and the reasons for issuing the notice under section 274 read with section 271(1)(c) were recorded by the Income-tax Officer. The assessee fully knew in detail the exact charge of the Department against him. In this background, it could not be said that either there was non-application of mind by the Income-tax Officer or the so-called ambiguous wording in the notice impaired or prejudiced the right of the assessee to reasonable opportunity of being heard. After all, section 274 or any other prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en over on 13.05.2016 and acquired rights and liabilities of M/s Sky Light Hospitality Pvt. Ltd. upon conversion under the Limited Liability Partnership Act, 2008, filed a writ petition impugning notice dated 30.03.2017 issued by the AO u/s 147/148 for the AY 2010-11. The contention of the assessee before the Hon'ble High Court was that notice u/s 147/148 of the Act dated 30.03.2017 was addressed and issued to M/s Sky Light Hospitality Pvt. Ltd., PAN No. AALCS3800N, a company which had ceased to exist and was dissolved on 13.05.2016. It was stated that the said notice issued to a dead juristic person is invalid and void in the eyes of law. Also contentions were raised stating that section 292B was inapplicable. The Hon'ble Delhi High Court held as under: "21. Our attention was drawn to Parashuram Pottery Works Co. Ltd. V. ITO, Circle I, Ward A, Rajkot, (1977) 106 ITR 1 (SC) which records that the Assessing Officer entrusted with the task of calculating and realizing tax should familiarize themselves with the relevant provisions and become well versed with the law on the subject. This is a salutary advice. Indeed, there have been lapses and faults resulting in the present litigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) has affirmed that alternate charge is possible under both the limbs simultaneously." 9.1 In the instant case, the AO vide his order u/s 143(3) dated 28.12.2011 has initiated the penalty proceedings u/s 271(1)(c) for furnishing inaccurate particulars of income or concealment of income. In the draft penalty order u/s 271(1)(c) dated 24.03.2014, the AO has imposed penalty of Rs. 46,59,047/- for concealment of income. Also we find that there is no provision in the Income Tax Act, 1961 for a draft penalty order u/s 271(1)(c) of the Act. 9.2 It would be apposite to refer here to the decision in Dilip N. Shroff v. JCIT (2007) 210 CTR (SC) 228, wherein it has been held : "83. It is of some significance that in the standard proforma used by the Assessing Officer in issuing a notice despite the fact that the same postulates that inappropriate words and paragraphs were to be deleted, but the same had not been done. Thus, the Assessing Officer himself was not sure as to whether he had proceeded on the basis that the assessee had concealed his income or he had furnished inaccurate particulars. Even before us, the learned Additional Solicitor General while placing the order of assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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