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TMI Blog2021 (2) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... on 271 (1 )(c) of the Act. The failure of the Assessing Officer to record such satisfaction makes the order levying penalty invalid and bad in law and such mistake is not curable defect under section 292B of the Act as it goes to the jurisdiction of levy of penalty for concealment. No mistake apparent from record within the purview of Section 254(2) of the Act and hence, Miscellaneous Application filed by the Revenue is dismissed on all counts. - M.A. No. 38/PUN/2020 (Arising out of ITA No.1853/PUN/2016) - - - Dated:- 5-2-2021 - Shri R.S. Syal, VP And Shri Partha Sarathi Chaudhury, JM For the Assessee : Shri Sanket Joshi For the Revenue : Shri Vitthal Bhosale ORDER PER PARTHA SARATHI CHAUDHURY, JM: This Misc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely for the reason of mistake or defect of striking-off the relevant limb i.e. for concealment of income and for furnishing of inaccurate particulars of income, inter-alia, cannot be considered as non-substantive to the intent and purpose of the Act. The issue stated is to be covered within the meaning of section 292B of the Act. The Hon'ble Tribunal has not appreciated the decision of the Hon'ble Supreme Court in the case of MAK Data (P) Ltd. vs. CIT-II 38 Taxman 448(SC) whereby the Hon'ble Apex Court held that the AO [Hon'ble CIT(A)-l, Nashik in the instant case] has to satisfy whether the penalty proceedings be initiated or not during the course of the assessment proceedings, and the AO is not required to record his sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble Bombay High Court in the case of CIT Vs. Samson Perinchery (supra.) wherein the Hon'ble Bombay High Court has considered the decision of Hon'ble Karnataka High Court in the case of CIT Vs. Manjunath Cotton and Ginning Factory (supra.), the legal proposition that comes out and which is binding in nature is that the Assessing Officer should be clear as to which of the two limbs under which penalty is imposable, has been contravened or indicate that both have been contravened while initiating penalty proceedings. It cannot be that the initiation would be only on one limb i.e. for furnishing inaccurate particulars of income while imposition of penalty on the other limb i.e. concealment of income. 21. The sanctity in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y High Court following the principles as laid down in the case of CIT Vs. Samson Perinchery (supra.) held and observed that the notice of penalty issued to the assessee must indicate whether the Assessing Officer is satisfied that the case of the assessee involves concealment of particulars of income or furnishing of inaccurate particulars of income or both, with clarity. That vide Para 8, it has been held as follows: 8. The contention based upon MAK Data (P) Ltd. (supra) also does not appeal to us in the peculiar facts of the present case. The notice in the present case is itself is defective and further; there is no finding or satisfaction recorded in relation to the concealment or furnishing of inaccurate particulars of income. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arguing penalty appeal and the proposition raised by way of Miscellaneous Application amounts to re-arguing the issue which cannot be allowed in the garb of Miscellaneous Application filed under section 254(2) of the Act. But the proposition of applicant Revenue that the mistake in non striking of one limb is curable under section 292B of the Act does not stand since for levying penalty under section 271 (1 )(c) of the Act, dictate of section and various Courts implementing the section is that the Assessing Officer has to record satisfaction as to which limb of said section has not been complied with by the assessee and show cause the assessee in this regard while initiating penalty proceedings under section 271 (1 )(c) of the Act. The fai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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