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TMI Blog2021 (6) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... e : Shri P. C. Yadav, Adv. For the Revenue : Shri Farhad Khan, Sr. D.R. ORDER PER ANIL CHATURVEDI, AM : This appeal filed by the assessee is directed against the order dated 29.06.2017 of the Commissioner of Income Tax (Appeals)- 24, New Delhi pertaining to Assessment Year 2009-10. 2. The relevant facts as culled from the material on records are as under: 3. A search and Seizure operation u/s 132 of the Act was conducted at business premises of companies of Rockland Group as well as at the residential premises of directors of the companies on 06.09.2011. Notice u/s 153C of the Act was issued on 05.09.2013 to the assessee and in response to which assessee filed return of income declaring Nil income on 10.09.2013. Pending assessment u/s 153C of the Act, assessee approached the Settlement Commission u/s 245C of the Income Tax Act in the capacity of a person related to other assessees of the Rockland Group declaring an additional income of ₹ 1,00,000/-. The assessee s application was rejected by the Hon ble Settlement Commission. Thereafter, assessment was completed u/s 153C on 20.06.2014 determining the total income of ₹ 9,24,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and as such the notice is not sustainable and not curable. 6. It is well settled that an assessee can raise a legal additional ground or even fresh legal plea at any stage of the proceedings. In support the appellant seeks to rely on the judgments of Apex Court in the case of CIT Vs Varas International reported in 284 ITR 80(SC) and NATIONAL THERMAL POWER CO. LTD vs. CIT reported in 229 ITR 383(SC). Special Bench decision in the case of DHL operators reported in 108 TTJ 152(SB). 383 (SC) Special Bench decision in the case of DHL operators reported in 108 TTJ 152(SB). 7. It is further relevant to mention here that the assessee had not raise this ground categorically at the time of filing as the assessee was under bonafide belief that ground number 3 would cover the legality of proceedings. And hence delay in raising the above grounds is a bonafide delay and hence the same may kindly be condoned. 8. It is also position of law that limitation of additional ground would relate backs to original grounds as held in the following cases. a. Shilpa Associates vs. ITO 263 ITR 0317 (Raj) b. Madad Lal Ansari vs DCIT 272 ITR 560 (Raj) 9. The appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in identical situation. He pointed to the consolidated order for A.Y. 2010-11, 2011-12 2012-13 dated 17.02.2021 which is placed in the paper book. He therefore submitted that since the facts in the case in the year under consideration are identical to that of earlier years, the matter be decided similarly and penalty be deleted. Learned DR on the other hand supported the order of lower authorities. 11. We have heard rival submissions and perused material on record. The issue in the present ground is with respect to the levy of penalty u/s 271(1)(c) of the Act. The assessee is challenging the levy of penalty u/s 271(1)(c) on the ground that the notice issued does not specify the limb of Section 271(1)(c) for which the penalty has been levied. The perusal of the notice for penalty dated 20.06.2014 issued u/s 274 r.w.s 271(1)(c) of the Act reveals that there is no specific charge has been mentioned by the AO for the levy of penalty. The notice u/s 271(1)(c) does not specify any specific charge viz whether it is a case of concealment of income or a case of filing of furnishing of inaccurate particulars of income. We find that identical issue arose in assessee s own case in A.Y. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) Commission paid to secure unexplained cash credits 5,38,706/- The a ssessee filed appeal against all the above heads of additions. In the appeal against the quantum additions, the following amounts were confirmed in first appeal. A.Y Head of addition Amount (IN Rs.) 2008-09 (i) Disclosure in settlement application 30,00,000 (ii) Unexplained cash credits 2,26,000/- (iii) Commission paid to secure unexplained cash credits 1,79,569/- After giving effect to the order of CIT(A), the Assessing Officer after providing the assessee an opportunity to show cause as to why penalty u/s 271(1)(c) should not be levied for concealment of income, and considering the same, rejected the submissions of the assessee and proceeded to levy penalty at the rate of 100% of the tax sought to be evaded on the amounts confirmed in first appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied on the ITA No. 4913/Del/2015 decision of the Division Bench of this Court rendered in the case of COMMISSIONER OF 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. Thus, Additional Ground No. (ii) of the assessee's appeal is allowed. Since the inception of the notice issued u/s 271(1)(c) has become null and void, there is no need to comment on merit of the case. The Penalty u/s 271(1)(c) of the Act is quashed. Since in the instant case also the inappropriate words in the penalty notice has not been struck off and the notice does not specify as to under which limb of the provisions, the penalty u/s 271(1)(c) has been initiated, therefore, we are of the considered opinion that the penalty levied u/s 271(1)(c) is not sustainable and has to be deleted. Although the Ld. DR submitted that mere nonstriking off of the inappropriate words will not invalidate the penalty proceedings, however, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee are allowed. 12. Before us, Revenue has not pointed to any distinguishing feature in the facts of the case in the year under consideration and that of the earlier year. Further CIT(A) while deciding the issue had also followed the reasoning of CIT(A) for A.Y. 2009-10. Revenue has also not placed any material on record to demonstrate that the ITAT order in assessee s own case for earlier year has been stayed/ set aside/ overruled by higher judicial forum. We further find that Hon ble Delhi High Court in the case of PCIT vs. Sahara India Life Insurance Co. Ltd. (2021) 432 ITR 84 (Del) has also deleted the penalty levied u/s 271(1)(c) when the notice did not mention whether the proceedings were initiated for concealment of particulars or for furnishing of inaccurate particulars of income. In such a situation, we for the reasons stated by the Co-ordinate Bench of Tribunal while deciding the issue for earlier years and for similar reasons and relying on the aforesaid decision of Hon ble Delhi High Court in the case of Sahara India Life Insurance (supra) are of the view that AO was not justified in levying the penalty u/s 271(1)(c) of the Act. We accordingly set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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