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TMI Blog2022 (4) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... as being proceeded against for. We, thus held A.O had clearly failed to discharge his statutory obligation of fairly putting the assessee to notice as regards the default for which she was being proceeded against, therefore, the penalty under Sec. 271(1)(c).- Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... be urged at the time of hearing of appeal." 2. Briefly stated, the assessee had filed her return of income for the assessment year 2009-10 on 11.03.2011, declaring a total income of ₹ 17,76,520/-. Return of income filed by the assessee was processed as such u/s 143(1) of the Act. Subsequently, the case of the assessee was re-opened u/s.147 of the Act and assessment was framed vide order passed u/s 143(3) r.w.s. 147 dated 23.12.2011, determining the total income of the assessee at ₹ 81,70,850/- after, inter alia, making the following additions: Sr. No. Particulars Amount 1. Income from LTCG ₹ 59,18,832/- 2. Undisclosed investment u/s.69 of the Act ₹ 4,75,500/- 3. At the time of culminating assessment proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenged on the ground of invalid assumption of jurisdiction by the Assessing Officer who had imposed the same without pointing out the specific default in the 'SCN' for which the penalty proceedings were initiated. As the assessee had assailed before us the very validity of the jurisdiction assumed by the Assessing Officer for imposing the penalty u/s 271(1)(c) of the Act, therefore, we shall first deal with the same. 7. We have heard the ld. Departmental Representative ("D.R", for short), and perused the orders of the lower authorities and the material available on record. Admittedly, on a perusal of the 'SCN', dated 10.07.2014, it stands revealed that the Assessing Officer had in the 'SCN', dated 10.07.2014 failed to strike-off the irrele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. In our considered view, the indispensable requirement on the part of the A.O to put the assessee to notice as regards the specific charge contemplated under the aforesaid statutory provision, viz. 'concealment of income' or 'furnishing of inaccurate particulars of income' is not merely an idle formality but is a statutory obligation cast upon him, which we find had not been discharged in the present case as per the mandate of law. 9. We would now test the validity of the aforesaid 'Show Cause' notice and the jurisdiction emerging therefrom in the backdrop of the judicial pronouncements on the issue under consideration. Admittedly, the A.O is vested with the power to levy penalty under Sec. 271(1)(c) of the Act, if in the course of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer in issuing a notice despite the fact that the same postulates that inappropriate words and paragraphs were to be deleted, but the same had not been done. Thus, the Assessing Officer himself was not sure as to whether he had proceeded on the basis that the assessee had concealed his income or he has furnished inaccurate particulars. Even before us, the learned Additional Solicitor General while placing reliance on the order of assessment laid emphasis that he had dealt with both the situations. 84. The impugned order, therefore, suffers from nonapplication of mind. It was also bound to comply with the principles of natural justice [See Malabar Industrial Co. Ltd. Vs. CIT (2000) 2 SCC 718]. We are of the considered vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part from that, we find that a similar view had been taken by the Hon'ble High Court of Bombay in the case of CIT Vs. Samson Perinchery (ITA No. 1154 of 2014; Dt. 05.01.2017)(Bom). 11. We find that as averred by the Ld. A.R. the indispensable obligation on the part of the A.O to clearly put the assessee to notice of the charge under the aforesaid statutory provision, viz. Sec. 271(1)(c) had been deliberated upon by a coordinate bench of the Tribunal, i.e. ITAT "C" Bench, Mumbai in the case of M/s Orbit Enterprises Vs. ITO-15(2)(2), Mumbai (ITA No. 1596 & 1597/Mum/2014, dated 01.09.2017). The Tribunal in the aforementioned case had in the backdrop of various judicial pronouncements concluded, that the failure to specify the charge in the 'S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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