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TMI Blog2020 (1) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... is being levied. As per Hon ble High Court, where the Assessing Officer proposed to invoke first limb being concealment, then the notice has to be appropriately marked. The Hon ble High Court held that the standard proforma of notice under section 274 of the Act without striking of the irrelevant clauses would lead to an inference of non-application of mind by the Assessing Officer. Hon ble Supreme Court in the case of Dilip N. Shroff vs. JCIT [ 2007 (5) TMI 198 - SUPREME COURT] has also noticed that where the AO issues notice u/s 274 of the Act in the standard proforma and the inappropriate words are not deleted, the same would postulate that the Assessing Officer was not sure as to whether he was to proceed on the basis that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsence of any concealment of income based on suspicion and surmises which in no circumstances can have any evidentiary value. d. For that the decisions were relied upon to substantiate that as there was no positive finding of concealment of income the imposition of penalty was bad in. The learned AO as well as CIT (A) misunderstood the doctrine of ratio decidendi by holding that the decisions have no application which is bad in law; e. For that, any other grounds incidental to the grounds of this case may kindly be permitted to urge at the time of hearing of the case. f. For that, any other evidences incidental to the grounds of this case may kindly be permitted to adduce at the time of hearing of the case. 3. Brief facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred appeals before the CIT(A), however, the CIT(A) after considering the submissions of the assessee and findings of AO, upheld the penalty so levied by the AO u/s.271(1)(c) of the Act in all the appeals for the above assessment years under consideration. 5. Further feeling aggrieved with the order of CIT(A), the assessee is in appeals before the Income Tax Appellate Tribunal. 6. At the outset, ld. Assessee Representative (AR) placing reliance on the decision of Hon'ble Karnataka High Court in the case of Manjunatha Cotton & Ginning Factory, 359 ITR 565 (Kar) submitted that the AO issued notice u/s.274 r.w.s.271(1)(c) of the Act on 31.10.2017, wherein both the allegations have been noted and the AO has not shown any clear indication to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner without applying any mind which is bad in law, hence is not a valid notice sufficient to impose penalty u/s 271(1)(c) of the Act. The Hon'ble Apex Court vide judgment in case of M/s. SSA's Emerald Meadows, (2016) 73 taxmann.com 248(SC) dismissed the Special Leave Petition filed by the Revenue against the judgment rendered by Hon'ble High Court of Karnataka whereby identical issue was decided in favour of the assessee. Operative part of the judgment in case of M/s. SSA's Emerald Meadows (supra) decided by Hon'ble High Court of Karnataka is reproduced below :- "2. This appeal has been filed raising the following substantial questions of law: (1) Whether, omission if assessing officer to explicitly mention t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while allowing the appeal of the assessee, has relied 01 the derision of the Division Bench of this Court rendered In the case of COMMISSIONER or INCOME TAX -VS- MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. 4. In our view, since the matter is covered by judgment of the Division Bench of this Court, we are of the opinion, no substantial question of law arises in this appeal for determination by this Court, the appeal is accordingly dismissed." 9. The Hon'ble Karnataka High Court in the case of Manjunatha Cotton & Ginning Factory, 359 ITR 565 (Kar) observed that the levy of penalty has to be clear as to the limb under which it is being levied. As per Hon'ble High Court, where the Assessing Officer proposed to inv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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