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TMI Blog2019 (5) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... his is an appeal preferred by the Revenue against the order of Ld. Commissioner of Income Tax (Appeals)-1, Jodhpur dated 19.03.2018 for AY 2012-13 deleting the penalty levied u/s. 271(1)(c) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) by the AO. 2. In this appeal the Revenue has challenged the order of CIT(A) in deleting 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 20.03.2015 determining total income at ₹ 2,29,85,380/- against assessee s returned income of Rs. Nil. In the said order an amount of ₹ 2,29,85,380/- was added by the AO on account of excess deduction claimed u/s. 36(1)(viia)(a) of the Act. 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 20.03.2015 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 ₹ 70,99,392/- as 100% of the tax sought to be evaded. Aggrieved, asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue preferred an appeal in SLP in CC No.11485 of 2016 and the Hon ble Supreme Court by its order dated 05.08.2016 dismissed the SLP preferred by the department. The ld. Counsel also brought to our notice the decision of the Hon ble Bombay High Court in the case of CIT vs Shri Samson Perinchery in ITA No.1154 of 2014 dated 05.01.2017 wherein 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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to enable him to explain as to why it should not be done. Mere mistake in the language used or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articulars is valid and legal? 2. Whether the proceedings initiated by the Assessing Authority was legal and valid? The Hon ble Karnataka High Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew expressed by the Hon ble Karnataka High Court in the case of Manjunatha Cotton Ginning (supra). 15. We have already observed that the show cause notice issued in the present case 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. We, therefore respectfully following the orders cited above confirm the action of the Ld. CIT(A) on this ground that the notice issued before the imposition of penalty itself is bad in law and not entering into the merits of the deletion of the penalty made by the Ld. CIT(A). Therefore, the appeal of the Revenue is dismissed. 6. In the result, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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