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TMI Blog2019 (4) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... t has raised the followings grounds of appeal:- (i) The CIT(A) ignored the provisions of sec.271(1B) of the I.T. Act. (ii) In the facts and circumstances, the CIT(A) erred in ignoring the fact that the assessee fully knew in detail the exact charge of the department against it and hence the so-called ambiguous wordings in the notice has not impaired or prejudiced the right of the assessee of reasonable opportunity of being heard. (iii) In the facts and circumstances, the CIT(A) erred in ignoring the fact that there is no prejudice or violation of principles of natural justice in the case of the assessee and the assesssee was never denied the rights to contest penalty proceedings and had full opportunity to meet the case of Revenue so as to show that the conditions stipulated in section 271 (1)(c) do not exist and that it is not liable to pay penalty. (iv) The CIT(A) ought to have followed the decisions of Hon'ble High Court of Andhra Pradesh in the case of CIT Vs. Chandulal (1 52 ITR 238)(AP) and Srinivasa Pitty Sons Vs.CIT (173 ITR 306)(AO). (iv) The CIT(A) ought to have held that the case of SSA's Emeralds Meadow Vs. CIT(2016) 73 taxmann.com 248 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome at ₹ 83,87,860/-. The Assessing Officer completed the assessment by making addition under section 2(22)(e) of ₹ 69,17,660/- and unexplained investment of ₹ 11,42,500/- in M/s. Alakananda Vinimay Pvt. Ltd. 5. Being aggrieved, the assessee carried the matter in appeal before the ld. CIT(A). The ld. CIT(A) directed the Assessing Officer to delete the addition made under section 2(22)(e) of the Act. As against the order of the ld. CIT(A), the Department carried the matter in appeal before the Tribunal and the ITAT, Visakhapatnam vide its order in ITA Nos.435 to 441/VIZ/2014, dated 09/09/2016, has dismissed the appeal filed by the Revenue. Subsequently, the Assessing Officer has communicated to the assessee regarding penalty proceedings initiated under section 271(1)(c) dated 28/09/2016. In response to the communication, the assessee has requested to drop the penalty. However, the Assessing Officer not accepted the explanation of the assessee and passed the penalty order under section 271(1)(c) of the Act on 31/03/2017 and levied penalty of ₹ 22,68,832/-. The assessee carried the matter in appeal before the ld. CIT(A) and raised an additional ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decision of the Hon ble Jurisdictional High Court cited, for starting the penalty proceedings, the condition precedent is that the assessing officer must be satisfied that a person has either concealed the particulars of his income or furnished inaccurate particulars of such income. The person who is accused of the conditions mentioned in Section 271 should be made aware of the grounds on which imposition of penalty is proposed as he has a right to contest such proceedings and should have the full opportunity to meet the case of the revenue so as to show that the conditions stipulated in Section 271(1)(c) do not exist and that he is not liable to pay the penalty. The Hon ble High Court of Karnataka in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof, the revenue must specify as to which one of the two is sought to be pressed into service and cannot be permitted to club both by interjecting an 'or' between the two, as in the present case. This ambiguity in the show-cause notice is further compounded presently by the confused finding of the Assessing Officer that he was satisfied that the assessee was guilty of both. We are therefore of the opinion that the order under appeal does not brook interference on any ground. We find no question of law, much less a substantial one, arising for consideration warranting admission of this appeal. 6.2. On the similar facts, 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 pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vizag/2015 have followed the ratio laid down by the Hon'ble High Court of Andhra Pradesh a Telangana in the case of Smt. Baisetti Revati and Hon'ble High Court of Karnataka in the case of Manjunatha Cotton and Ginning Factory 359 ITR 565 (Kw) wherein their lordships have cancelled the penalty order passed by the Assessing Officer. Respectfully following the decision of Hon'ble High Court, Andhra Pradesh, the penalty order dt.31.03.2017 passed u/s.271(1)(c) of the Act is held as invalid and consequently the penalty levied of ₹ 22,68,932/- is also cancelled. 11. In view of the above, we find no reason to interfere with the order passed by the ld. CIT(A). Thus, this appeal filed by the Revenue is dismissed. 12. So far as cross objection filed by the assessee is concerned, there is a delay of 67 days. The assessee has not explained the reasons for filing this C.O. with inordinate delay. Therefore, the cross objection filed by the assessee is dismissed in limini 13. In the result, appeal filed by the Revenue as well as C.O. filed by assessee is dismissed. Order Pronounced in open Court on this 10th day of April, 2019. - - TaxTMI - TMITax - Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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