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TMI Blog2020 (3) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... e ld.AR of the assessee that the assessee has raised cross objection that the ld. CIT(A) has not adjudicated the issue raised therein in respect of the validity of notice issued by the AO. According to him, the AO has not specified the fault for which the impugned penalty has been proceeded against the assessee u/s. 271(1)( c) of the Act i.e as to whether the assessee has concealed its income or furnished any inaccurate particulars of income. Therefore, according to the ld. AR, even though on merits the ld. CIT(A)has given relief to the assessee, looking at from this angle also, the penalty levied by the AO cannot be sustained. We note that the ld. CIT(A) has given relief to the assessee by deleting the impugned penalty on merits. First of all we will take up the C.O of the assessee, in respect to the infirmity in notice proposing penalty. 4. We have heard rival submissions and gone through the facts and circumstances of the case. We note that the Ld. CIT(A) has deleted the penalty taking note that due to inadvertent and bona fide error, the assessee has not shown the income which has been added by AO and this omission on the part of assessee was not due to contumacious conduct of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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. 6. Ld. DR vehemently opposed the order of Ld. CIT(A) and more specifically the CO of the assessee and has cited various case laws. 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 in the case of Jeetmal Choraria Vs. ACIT, ITA No. 956/Kol/2016 for AY 2010-11 dated 01.12.2017, wherein the Tribunal has noted as under: "7. The learned DR submitted that the Hon'ble Calcutta High Court in the case of Dr.Syamal Baran Mondal Vs. CIT (2011) 244 CTR 631 (Cal) has taken a view that Sec.271 does not mandate that the recording of satisfaction about concealment of income must be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taka 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 did not follow the decision rendered in the case of Manjunatha Cotton & Ginning Factory (supra) for the reason that penalty in that case was deleted for so many reasons and not solely on the basis of defect in show cause notice u/s.274 of the Act. This is not factually correct. One of the parties before the group of Assessees before the Karnataka High Court in the case of Manjunatha Cotton & Ginning (supra) was an Assessee by name M/s.Veera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case Manjunatha Cotton & Ginning (supra) will not be applicable to the facts of that case because the AO in the assessment order while initiating penalty proceedings has held that the Assessee had concealed particulars of income and merely because in the show cause notice u/s.274 of the Act, there is no mention whether the proceedings are for furnishing inaccurate particulars or concealing particulars of income, that will not vitiate the penalty proceedings. In the present case there is no whispher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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