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TMI Blog2019 (8) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal in time. In our opinion, it is a fit case to condone the delay. Admission of additional ground - penalty u/s 271(1)(c) levied - HELD THAT:- We find that the issue raised by the assessee is a legal issue and all the facts are available on record. In this context, the Hon ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs. CIT [ 1996 (12) TMI 7 - SUPREME COURT] has considered the issue and held that where the tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee . From the above, it is very clear that there is no fresh investigation on facts is required, the additional ground raised by the assessee has to be adjudicated, hence, the same has to be admitted by following the judgment of the Hon ble Supreme Court in the case of National Thermal Power Co. Ltd., (supra), the additional ground raised by the assessee is admitted. Penalty u/s 271(1)(c) - non-striking of the irrelevant portion of the notice issued u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken up the penalty proceedings u/s 271(1)(c) of the Act. In the circumstances explained above, the appellant could neither appear nor could request the assessing officer to keep the penalty proceedings in abeyance till the disposal of the appeal preferred against the assessment order. 6. The assessing officer levied a penalty of ₹ 11,87,836/ u/s 271(1)(c) of the Act vide order dt.26.09.2014. The appellant filed an appeal against the penalty order but there was a delay of 46 days in filing the appeal. The learned Commissioner of Income Tax (Appeals) considered that the delay was on account of critical illness of the spouse of the managing partner and adjudicated the appeal. He noticed that the appeal filed against the quantum order was disposed of by the learned CIT(A)-1, Visakhapatnam vide order dt.20.12.2016 wherein it was held that the appellant is entitled for deduction of actual expenditure incurred towards research and development in Bio technology u/s 35(1)(i) of the Act. Therefore, the claim was restricted to 19,04,549/ as against claim of ₹ 28,57,274/ @150% of the actual expenditure u/s 35(2AB) of the Act. Based on this, the learned CIT(A) vide order dt. 02. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ultimately she died on 04/06/2017. Under these facts and circumstances of the case, the assessee has not drawn attention on the order passed by the ld. CIT(A). When the Income-tax Department pursued the matter in respect of collection of tax, it came to the notice of the assessee and immediately filed appeal against the order of the ld. CIT(A). By considering the affidavit filed by the assessee and also the details explained by the assessee, we find that there is a sufficient cause for the assessee in non-filing the appeal in time. In our opinion, it is a fit case to condone the delay. Accordingly, delay is condoned. 4. Facts of the case, in brief, are that the assessee is a firm, filed its return of income by declaring total income of ₹ 8,36,860/-. The case of the assessee was selected for scrutiny and assessment was completed under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the 'Act') by making certain additions. Subsequently, penalty notice u/sec. 274 r.w.s. 271 of the Act, dated 30/03/2014 was issued and thereafter penalty order u/sec. 271(1)(c) was passed on 26/09/2014. 5. On appeal, ld. CIT(A) confirmed the penalty order passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer is not a valid notice in the light of the latest judgment of the Hon'ble Supreme Court in the case of CIT Vs. SSA‟s Emerald Meadows [(2016) 73 taxman.com 248 (SC)] and also the Hon'ble High Court of Telangana & A.P. in I.T.T.A. No. 684/2016 in Pr.CIT Vs. Smt. Baisetty Revathi, dated 13/07/2017. 12. On the other hand, learned Departmental Representative has submitted that at the time of issuance of notice, the Assessing Officer is not sure about the penalty either for concealment of income or furnishing inaccurate particulars. Therefore, it is a premature notice and submitted that the notice issued by the Assessing Officer is a valid notice. 13. We have heard both the sides, perused the material available on record and orders of the authorities below. 14. The only issue for adjudication before us is whether the notice issued by the Assessing Officer dated 30/03/2014 is valid or not. For the sake of convenience, the notice is extracted as under:- "Whereas in the course of proceedings before me for the Assessment Year 2011-12, it appears to me that you:- (i) x x x x (ii) x x x x √ (iii) have concealed the particulars of your income or furnished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case law cited held that the practice of the revenue in sending the printed form where all the grounds mentioned in 271(1)(c) are mentioned would not satisfy the requirement of law when the consequence of the assessee not rebutting the initial presumption is serious in nature and has to pay the penalty ranging from 100% to 300% of the tax liability. As the provisions of section 271(1)(c) have to be strictly construed, the Hon‟ble High court of Karnataka manda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 penalty imposed by the AO is cancelled. " 16. We find that the decision of Hon'ble High Court of Telangana & A.P. in the case of Smt. Baisetty Revathi (supra) has considered the very same issue and held that non-striking of the irrelevant portion of the notice issued u/sec. 274 is invalid. The very same judgment has been followed by the coordinate bench of this tribunal in the case of Konchada Sreeram (supra). Therefore, r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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