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TMI Blog2019 (10) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice issued under section 274 read with section 271(1)(c), dated 25/03/2013 is invalid - Decided in favour of assessee. - ITA Nos. 342, 344 & 345/VIZ/2019 - - - Dated:- 25-9-2019 - Shri V. Durga Rao, Hon ble Judicial Member And Shri D.S. Sunder Singh, Hon ble Accountant Member For the Assessee : Shri G.V.N. Hari Advocate. For the Department : Smt. Suman Malik Sr.DR ORDER PER V. DURGA RAO, JUDICIAL MEMBER These appeals by the assessee are directed against the separate orders of Commissioner of Income Tax (Appeals)-10, Hyderabad, all dated 26/03/2019 for the Assessment Years 2003-04, 2005-06 2006-07. Since facts and issues ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and therefore, the additional ground raised before the tribunal is a legal issue, which goes to the root of the matter and therefore the same may be admitted. 6. On the other hand, learned Departmental Representative has raised objection for admission of additional legal ground raised by the assessee. 7. We have heard both the sides, perused the material available on record and orders of the authorities below. 8. 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 (229 ITR 383) has considered the issue and held that where the tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. We have heard both the sides, perused the material available on record and orders of the authorities below. 12 The only issue for adjudication before us is whether the notice issued by the Assessing Officer dated 25/03/2013 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 2003-04, it appears to me that you:- (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of the property have come to the notice of the assessing officer because of the efforts made by the department. Therefore, the AO has initiated the penalty proceedings u/s 271(1)(c) and issued show cause notice in the printed proforma of penalty. The AO has issued the penalty notice which reads as under : WHEREAS in the course of the proceeding before me for the Asst. Year 2007-08 it appears to me that you have concealed the 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , otherwise the principles of natural justice would be offended as the show cause notice would be vague. On the similar facts, Hon‟ble Supreme Court dismissed the SLP in the case of SSA‟s Emerald Meadows (2016) 73 Taxman.com 248(SC). Ld. DR‟s argument that the case is distinguishable on facts is not acceptable since the Ld. DR relied on the passing observation of the Hon‟ble High Court of AP. In the assessee‟s case, the issue is the defective notice u/s 271(1)(c) but not the penalty order. Unless the notice issued u/s 271(1)(c) is valid the penalty order cannot be held to be valid. The assessing officer did not strike off the irrelevant column in the notice and made known the assessee whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfied 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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