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TMI Blog2019 (8) TMI 1606X X X X Extracts X X X X X X X X Extracts X X X X ..... IAL MEMBER AND SHRI RAJESH KUMAR, HON'BLE ACCOUNTANT MEMBER For the Assessee : Shri Nishit Gandhi For the Department : Shri Rajiv Gubgotra ORDER PER C.N. PRASAD (JM) 1. This appeal is filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals) 14, Mumbai [hereinafter in short Ld.CIT(A) ] dated 15.12.2017 for the A.Y. 2013-14 in sustaining the penalty levied u/s. 271(1)(c) of the Act. 2. At the outset, Ld. Counsel for the assessee submitted that the initiation of penalty proceedings is bad in law as the Assessing Officer has not specified the limb on which the penalty was proposed to be levied. 3. Ld. Counsel for the assessee referring to the notice issued u/s. 274 r.w.s 271(1)(c) of the Act submitted that the Assessing Officer is not clear as to the charge for which the penalty is initiated i.e. either for concealment of income or for furnishing inaccurate particulars. Referring to the notice Ld. Counsel for the assessee submitted that the inappropriate limb in the notice was not strike off. Ld. Counsel for the assessee referring to the Assessment Order submitted that the Assessing Officer stated that proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo limbs of section 271(1)(c) of the Act he has to respond. 7. Following the above decision, similar view has been taken by the Coordinate Bench in the case of Orbit Enterprises v. ITO [60 ITR(Trib.) 252]. In the case of DCIT v. Shri Dhaval D. Shah in ITA.No. 1337/Mum/2016 C.O.NO.08/Mum/2018 dated 16.05.2018 the Coordinate Bench considered similar and identical issue and following the ratio laid down in the Dilip N. Shroff [210 CTR 228 (SC)] and the decision of the Hon ble Jurisdictional High Court in the case of CIT v. Samson Perinchery (supra) held that the penalty proceedings initiated by the Assessing Officer is bad in law. While holding so the Coordinate Bench held as under: 9. We have heard the rival submissions and perused the relevant materials on record. The reasons for our decisions are given below. We begin with the decisions relied on by the Ld. DR. In the case of Smt. Kaushalya Ors. (supra), the Hon ble Bombay High Court held: 9. We will first take up the show-cause notice dated March 29, 1972, pertaining to the assessment years 1968-69 and 1969-70. The assessment orders were already made and the reasons for issuing the notice under section 274 read w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recorded in the order of re-assessment, which was passed on the same date on which the notice u/s 271(1)(c) was issued, initiating the proceedings of imposing the penalty. The assessee had sufficient notice of the action of imposing penalty. We, therefore, do not find either any jurisdiction error or unjust exercise of power by the authority. In Sky Light Hospitality LLP (supra), the assessee (Sky Light Hospitality LLP) who had taken over on 13.05.2016 and acquired rights and liabilities of M/s Sky Light Hospitality Pvt. Ltd. upon conversion under the Limited Liability Partnership Act, 2008, filed a writ petition impugning notice dated 30.03.2017 issued by the AO u/s 147/148 for the AY 2010-11. The contention of the assessee before the Hon ble High Court was that notice u/s 147/148 of the Act dated 30.03.2017 was addressed and issued to M/s Sky Light Hospitality Pvt. Ltd., PAN No. AALCS3800N, a company which had ceased to exist and was dissolved on 13.05.2016. It was stated that the said notice issued to a dead juristic person is invalid and void in the eyes of law. Also contentions were raised stating that section 292B was inapplicable. The Hon ble Delhi High Court held as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d finding that the Hon ble Lordships did not find any merit in this petition which means ratio of decision of Hon ble Karnataka High Court in SSA s Emerald Meadows in ITA No. 380 of 2015 stood confirmed. The Hon ble Karnataka High Court in SSA s Emerald Meadows has affirmed the ratio of judgment of Manjunatha Cotton and Ginning Factory (supra). We have already seen that Hon ble Karnataka High Court in Manjunatha Cotton and Ginning Factory (supra) has affirmed that alternate charge is possible under both the limbs simultaneously. 9.1 In the instant case, the AO vide his order u/s 143(3) dated 28.12.2011 has initiated the penalty proceedings u/s 271(1)(c) for furnishing inaccurate particulars of income or concealment of income. In the draft penalty order u/s 271(1)(c) dated 24.03.2014, the AO has imposed penalty of ₹ 46,59,047/- for concealment of income. Also we find that there is no provision in the Income Tax Act, 1961 for a draft penalty order u/s 271(1)(c) of the Act. 9.2 It would be apposite to refer here to the decision in Dilip N. Shroff v. JCIT (2007) 210 CTR (SC) 228, wherein it has been held : 83. It is of some significance that in the standard proforma us ..... X X X X Extracts X X X X X X X X Extracts X X X X
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