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TMI Blog2022 (7) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... ch decision supra squarely applies to the facts of the assessee's case as the notice u/s. 274 r.w.s. 271(1)(c) of the Act was issued without striking off the irrelevant portion of the limb and failed to intimate the assessee the relevant limb and charge for which the notices were issued. Thus, respectfully following the said decision we hold that the penalty order passed u/s. 271(1)(c) of the Act by the Assessing Officer is bad in law and accordingly the penalty order passed u/s. 271(1)(c) of the Act for Assessment Years 2000-01 to 2003-04 is quashed. - Decided in favour of assessee. - I.T.A Nos. 5838 TO 5841/Del/2019 - - - Dated:- 13-7-2022 - Shri Challa Nagendra Prasad, Judicial Member, S.M.C. For the Assessee : Shri V. K. Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecify the exact nature of default whether the same was for concealment of income or for furnishing inaccurate particulars of income has been accepted by the ld. CIT (Appeals) as this position is factually correct. However, ld. CIT (Appeals) sustained the penalty on the ground that the assessee accepted that he has charged some commission on the transactions provided by the assessee. 5. We observe that an identical issue came up before the Hon ble Bombay High Court (full bench at Goa) in the case of Mr. Mohd. Farhan A. Shaikh vs. ACIT [434 ITR (1)] and the Hon ble High Court held as under:- Question No.l: If the assessment order clearly records satisfaction for imposing penalty on one or the other, or both grounds mentioned in Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of 'prejudice? 184. Indeed, Kaushaiya did discuss the aspect of prejudice. As we have already noted, Kaushaiya noted that the assessment orders already contained the reasons why penalty should be initiated. So, the assessee, stresses Kaushaiya, fully knew in detail the exact charge of the Revenue against him . For Kaushaiya, the statutory notice suffered from neither non-application of mind nor any prejudice. According to it, the so-called ambiguous wording in the notice [has not] impaired or prejudiced the right of the assessee to a reasonable opportunity of being heard . It went onto observe that for sustaining the piea of natural justice on the ground of absence of opportunity, it has to be established that prejudice is ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be deleted, but the same had not been done . Then, Dilip N. Shroff, on facts, has felt that the assessing officer himself was not sure whether he had proceeded on the basis that the assessee had concealed his income or he had furnished inaccurate particulars. 188. We may, in this context, respectfully observe that a contravention of a mandatory condition or requirement for a communication to be valid communication is fatal, with no further proof. That said, even if the notice contains no caveat that the inapplicable portion be deleted, it is in the interest of fairness and justice that the notice must be precise. It should give no room for ambiguity. Therefore, Dilip N. Shroff disapproves of the routine, ritualistic practice of iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result, we hold that Dilip N. Shroff treats omnibus show cause notices as betraying non-application of mind and disapproves of the practice, to be particular, of issuing notices in printed form without deleting or striking off the inapplicable parts of that generic notice. Conclusion: We have, thus, answered the reference as required by us; so we direct the Registry to place these two Tax Appeals before the Division Bench concerned for further adjudication. 6. As could be seen from the above the Hon'ble Bombay High Court (Full Bench at Goa) in the case of Mr. Mohd. Farhan A. Shaikh v. ACIT [(2021) 434 ITR 1 (Bom)] while dealing with the issue of non-strike off of the irrelevant part in the notice issued u/s.271(l)(c) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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