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TMI Blog2019 (5) TMI 1551X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Member And Ms. Suchitra Kamble, Judicial Member For the Appellant : Sh. Naveen ND Gupta,CA, Sh. Ashu Goel, CA For the Respondent : Sh. S. S. Rana, CIT(DR) ORDER PER R.K. PANDA, AM: 1. The above three appeals filed by the assessee are directed against the separate orders dated 03.08.2016 of the CIT (A)-29, New Delhi relating to A. Y. 2008-09, 2010-11 and 2011-12 respectively. For the sake of convenience, these were heard together and are being disposed of by this common order. 2. Levy of penalty u/s. 271 (1) (c) of the IT Act by the Assessing Officer and upheld by the CIT (A) for all the above three years is the only issue raised by the assessee in the respective grounds of appeal. 3. Facts of the case, in brief, are that the assessee is an individual and filed return of income for the respective assessment years the details of which are as under :- A. Y. 2008-09 ₹ 26,03,718/- A. Y. 2010-11 ₹ 46,93,437/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rves to be set aside. For the above proposition, he relied on the following decisions :- i. SSA 'S Emerald Meadows 242 Taxman 180. ii. Dilip N Shroff, 291ITR 519. iii. Manjunatha Cotton Ginning Factory, 359 ITR 565. iv. Samson Perinchery, 392 ITR 4. v. Sahiwal Investment Trading Co., ITA No.4913/Del/2015 dated 18.07.2018. vi. Dr. Sarita Milin Davare, 184 TTJ 9. vii. Jeetmal Choraria, 91 taxmann.com 311. viii. Shri Sachin Arora, ITA No.l 18/Agra/2015 dated 19.12.2017. 8. Referring to the following decisions, he submitted that the show-cause notice u/s 274 is a mandatory notice without which the initiation of penalty proceedings would become non-est in the eye of the law and the charge should be specific in said notice. In absence of the same, the notice will be invalid even if there is specific charge in assessment order and penalty order passed by the Assessing Officer i. Shri Sachin Arora, ITA No. 118/Agra/2015 dated 19.12.2017. ii. Dr. Sarita Milind D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.- 285/Del/2007) (3) Earthmoving Equipment Service Corporation Vs. DCIT 166 ITD 113 (Mumbai) (4) DCIT Vs. Shah Rukh Khan 93 taxman.com 320 (Mumbai) (5) Dhanraj Mills Ltd. Vs. ACIT (ITA No.3830 3833/Del 12. The Ld. Counsel for the assessee in his rejoinder submitted that if two views are possible on an issue, the view which is favourable to the assesee has to be followed. For the above provision, he relied on the decision of the Hon ble Supreme Court in the case of Vegetable Products Limited reported in 88 ITR 192. 13. Referring to following decisions, he submitted that section 292 BB would not come to the rescue of the revenue when the notice was not in substance and in conformity with or according to the intent of the IT Act :- i. Shri Sachin Arora, ITA No. 118/Agra/2015 dated 19.12.2017. ii. Dr. Sarita Milind Davare, 184 TTJ 9. iii. Shri K. Prakash Shetty, ITA No.265 to 267/2014 dated 05.06.2014. 14. We have considered the rival arguments made by both the sides and perused the orders of the authorities below and perused the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice elated 30.06.20J3 produced, by the Ld. AR during the hearing, it can be seen that the Assessing Officer v was not sure under which limb of provisions of Section 271 of the Income Tax Act, 1961, the assessee is liable for penalty. The issue is squarely covered by the decision of the Hon'ble Supreme Court in case of M/s SSA' Emerald Meadows. The extract of the decision of the Hon'ble Karnataka High Court in M/s. SSA' Emerald Meadows are as under which was confirmed by the Hon'ble Apex Court: 3. The Tribunal has allowed the appeal filed by the assessee holding the notice issued by the Assessing Officer under Section 274 read with Section 271(l)(c) of the Income Tax Act, 1961 (for short 'the Act') to be bad in law as it did not specify which limb of Section 271(l)(c) of the Act, the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing of inaccurate particulars of income. The Tribunal, while allowing the appeal of the assessee, has relied on the ITA No. 4913/Del/2015 decision of the Division Bench of this Court rendered in the case of COMMISSIONER OF INCO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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