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TMI Blog2021 (7) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... ticulars thereof. AO to assume jurisdiction u/s 271(1)(c), proper notice is necessary and the defect in notice u/s 274 of the Act vitiates the assumption of jurisdiction by the learned Assessing Officer to levy any penalty. In this case, facts stated supra, clearly establish that the notice issued under section 274 read with 271 of the Act is defective and, therefore, we find it difficult to hold that the learned AO rightly assumed jurisdiction to pass the order levying the penalty. As a consequence of our findings above, we direct the Assessing Officer to delete the penalty in question. Appeal of assessee is allowed. - ITA No. 6766/Del/2017 - - - Dated:- 23-7-2021 - Shri Prashant Maharishi, Accountant Member And Shri K. Narasimha Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. 14A, but sustained the penalty based on remaining additions/disallowances. 4. When the matter is called, there is no representation from the assessee. Notice was sent to the address given in form No. 36. If the assessee is available in such address, such notice should have been served on the assessee. If for any reason, the assessee is not available there, it is for the assessee to make arrangements for service of such notice by furnishing the address where the assessee would be available, or to deliver it to some authorised person, or by making request to the postal department to detain the mail till the assessee claims the same. Non-service of notice is solely attributable to the conduct of assessee. In these circumstances, we p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iss the appeal. 6. We have gone through the record in the light of the submissions made by ld. DR and also a written synopsis placed on record by the ld. AR. It is an undisputed fact that the notice issued to the assessee does not specify the charge under which the penalty was proposed to be levied by the Assessing Officer whether for concealment of particulars of income or for furnishing inaccurate particulars of such income. 9. In the case of CIT vs Manjunatha Cotton Ginning Factory, 359 ITR 565 (Kar) ,vide paragraph 60, the Hon ble Karnataka High Court has held as follows :- 60. Clause (c) deals with two specific offences, that is to say, concealing particulars of income or furnishing inaccurate particulars of income. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the imposition of penalty is not valid. The validity of the order of penalty must be determined with reference to the information, facts and materials in the hands of the authority imposing the penalty at the time the order was passed and further discovery of facts subsequent to the imposition of penalty cannot validate the order of penalty which, when passed, was not sustainable. 10. In Commissioner of Income Tax v. SSA s Emerald Meadows (2016) 73 taxman.com 241 (Kar) the Hon ble Karnataka High Court Considered the question of law as to,- Whether, omission if assessing officer to explicitly mention that penalty proceedings are being initiated for furnishing of inaccurate particulars or that for concealment of income makes the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany Limited case ITA No 475/2019 and batch order dated 02/08/2019, Hon ble Delhi High Court, upheld the view taken by the Tribunal basing on the decision of the Hon ble Karnataka High Court in the case of Manjunatha Cotton and Ginning Factory (supra) and SSA s Emerald Meadows (supra) wherein it was held that the notice issued by the learned Assessing Officer would be bad in law if it did not specify under which limb of section 271(1)(c) of the Act the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or for furnishing of inaccurate particulars thereof. Relevant observations of the Hon ble High Court read that,- 21. The Respondent had challenging the upholding of the penalty imposed under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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