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TMI Blog2019 (5) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... e against the order of Ld. Commissioner of Income Tax (Appeals)-1, Udaipur dated 28.12.2018 for AY 2010-11 confirming the penalty levied u/s. 271(1)(c) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) imposed by the AO. 2. In this appeal the assessee has challenged the order of CIT(A) in confirming the penalty u/s. 271(1)(c) of the Act. The facts and circumstances under which penalty u/s 271(1)(c) of the Act was imposed on the assessee by the AO are that in this case the assessment u/s. 143(3) of the Act was made on 22.01.2013 determining total income at ₹ 12,52,980/- against assessee s returned income of ₹ 8,53,620/-. In the said order an amount of ₹ 3,29,360/- was added by the AO on account of undisclosed gain of LTCG. On considering the same as suppressed income as well as undisclosed portion of income, the penal proceedings u/s. 271(1)(c) of the Act was initiated on 22.01.2013 by invoking notice u/s. 274 read with sec. 271 of the Act. On considering the reply of the assessee the AO imposed a penalty of ₹ 93,060/- as 100% of the tax sought to be evaded. Aggrieved, assessee preferred appeal before Ld. CIT(A), who confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 (Kolkata) 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. 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 (Kolkata) in the case of Jeetmal Choraria Vs. ACIT, ITA No. 956/Kol/2016 for AY 2010-11 dated 01.12.2017, wherein the Tribunal has noted as under: 7. The learned DR submitted that the Hon ble Calcutta High Court in the case of Dr.Syamal Baran Mondal Vs. CIT (2011) 244 CTR 631 (Cal) has taken a view that Sec.271 does not mandate that the recording of satisfaction about concealment of income must be in specific terms and words and that satisfaction of AO must reflect from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 that case was deleted for so many reasons and not solely on the basis of defect in show cause notice u/s.274 of the Act. This is not factually correct. One of the parties before the group of Assessees before the Karnataka High Court in the case of Manjunatha Cotton Ginning (supra) was an Assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that the Assessee had concealed particulars of income and merely because in the show cause notice u/s.274 of the Act, there is no mention whether the proceedings are for furnishing inaccurate particulars or concealing particulars of income, that will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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