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TMI Blog2020 (4) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... Sr. AR) ORDER PER AMARJIT SINGH, JM: The assessee has filed the present appeal against the order dated 02.08.2018 passed by the Commissioner of Income Tax (Appeals)-4, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the A.Y. 2013-14 in which the penalty levied by the AO has been ordered to be confirmed. 2. The assessee has raised the following grounds: - 1. The Ld. CIT(A) - 4 erred in erred in dismissing the appeal merely on a technical reason that the same was filed manually instead on filing the appeal electronically. 2. On the facts and circumstances of the case and in law the learned Assessing Officer erred in levying penalty u/s 271(1)(c) of the Income Tax Act, 1961 amounting to ₹ 26,10,000/-. 3. On the facts and circumstances of the case and in law the learned Assessing Officer erred in levying penalty u/s 271(1)(c) w.r.t. addition of ₹ 1,08,07,020/- without appreciating the fact that the appellant had suo moto revised its computation of income and offered the same to tax without any discovery by the learned Assessing Officer. 4. On the facts and circumstances of the case and in law the learned Assessing Officer erred i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of the assessee was assessed to the tune of ₹ 5,40,21,980/-. The penalty proceeding was initiated by issuance of notice dated 29.01.2016 specifically upon the additional income offered in sum of ₹ 1,08,07,020/- and ₹ 18,22,123/- on account of exemption u/s 54 of the I. T. Act in respect of Juhu Flat. The total penalty in sum of ₹ 26,01,603/- was levied. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who confirmed the penalty, therefore, the assessee has filed the present appeal before us. 4. We have heard the argument advanced by the Ld. Representative of the parties and perused the record. At the very outset, the Ld. Representative of the assessee has argued that the penalty notice nowhere speaks about specific limb to levy the penalty because the particular charge was not tick off in the notice, therefore, in the said circumstances, the penalty is not justifiable hence the order of the CIT(A) confirming the penalty order of the AO is wrong against law and facts and is liable to be set aside. In support of these contentions the Ld. Representative of the assessee has placed reliance upon the law settled in ITA. No.1154/M/2014 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act denote different connotations. In fact, this distinction has been appreciated even at the level of Hon'ble Supreme Court not only in the case of Dilip N. Shroff (supra) but also in the case of T. Ashok Pai, 292 ITR 11 (SC). Therefore, if the two expressions, namely concealment of the particulars of income‟ and furnishing of inaccurate particulars of income‟ have different connotations, it is imperative for the assessee to be made aware as to which of the two is being put against him for the purpose of levy of penalty u/s 271(1)(c) of the Act, so that the assessee can defend accordingly. It is in this background that one has to appreciate the preliminary plea of assessee, which is based on the manner in which the notice u/s 274 r.w.s. 271(1)(c) of the Act dated 10.12.2010 has been issued to the assessee-company. A copy of the said notice has been placed on record and the learned representative canvassed that the same has been issued by the Assessing Officer in a standard proforma, without striking out the irrelevant clause. In other words, the notice refers to both the limbs of Sec. 271(1)(c) of the Act, namely concealment of the particulars of income as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curate particulars of income. In our considered opinion, the attempt of the ld. CIT-DR to demonstrate application of mind by the Assessing Officer is no defence inasmuch as the Hon'ble Supreme Court has approved the factum of non-striking off of the irrelevant clause in the notice as reflective of non-application of mind by the Assessing Officer. Since the factual matrix in the present case conforms to the proposition laid down by the Hon'ble Supreme Court, we proceed to reject the arguments advanced by the ld. CIT-DR based on the observations of the Assessing Officer in the assessment order. Further, it is also noticeable that such proposition has been considered by the Hon'ble Bombay High Court also in the case of Shri Samson Perinchery, ITA Nos. 1154, 953, 1097 1126 of 2014 dated 5.1.2017 (supra) and the decision of the Tribunal holding levy of penalty in such circumstances being bad, has been approved. 11. Apart from the aforesaid, the ld. CIT-DR made an argument based on the decision of the Hon'ble Bombay High Court in the case of Smt. Kaushalya Others, 216 ITR 660 (Bom.) to canvass support for his plea that non-striking off of the irrelevant portion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad also prejudiced the right of reasonable opportunity of the assessee since he did not know what exact charge he had to face. In this back ground, quashing of the penalty proceedings for the assessment year 1967-68 seems to be fully justified. In the instant case also, we are of the view that the AO has issued a notice, that too incorrect one, in a routine manner. Further the notice did not specify the charge for which the penalty notice was issued. Hence, in our view, the AO has failed to apply his mind at the time of issuing penalty notice to the assessee. 12. The aforesaid discussion clearly brings out as to the reasons why the parity of reasoning laid down by the Hon'ble Supreme Court in the case of Dilip N. Shroff (supra) is to prevail. Following the decision of our coordinate Bench in the case of Dr. Sarita Milind Davare (supra), we hereby reject the aforesaid argument of the ld. CIT-DR. 13. Apart from the aforesaid discussion, we may also refer to the one more seminal feature of this case which would demonstrate the importance of non-striking off of irrelevant clause in the notice by the Assessing Officer. As noted earlier, in the assessment order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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