9911796707
TMI Blog2022 (7) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... iking off the irrelevant portion in the show cause notice, in the light of the decisions relied upon by the Ld.AR in the case of Mohd. Farhan A. Shaikh vs DCIT ( 2021 (3) TMI 608 - BOMBAY HIGH COURT] and Dilip N Shroff [ 2007 (5) TMI 198 - SUPREME COURT] both, the jurisdictional High Court as well as the Hon ble Apex Court 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. In a plethora of judgements pertaining to this issue various courts have consistently reiterated the principle that the assessee must be informed of the grounds on which penalty proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se appeals, taking ITA No.289/Mum/2016 as the lead case. 3. The brief facts of the case are that it was alleged that the assessee, alongwith one Shri Dilip Shah were involved in issuing bogus bills to various entities, which are mainly involved in steel markets. It was found that they had opened several bank accounts in the names of different persons, who are found to be dummy persons. A search and seizure action was carried out under section 132 of I.T. Act in the case of the assessee on 05/02/2011, based on the above mentioned allegation. The assessment under section 143(3) read with section 153A of the I.T. Act was completed on 31/12/2008 thereby assessing the total income of the assessee at Rs.310,11,08,233/- against the returned incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y proceedings. 5. The Ld.DR, on the other hand, stated that the Tribunal has upheld the quantum addition in assessee's case for assessment years 2001-02 to 2007-08. The Ld.DR further stated that the assessee's case would be covered under both the limbs of section 271(1)(c) viz. for furnishing inaccurate particulars of income and concealment of income. For this proposition, he relied upon the decision of Hon'ble Delhi High Court in CIT vs Harprashad & Co Ltd (2010) 328 ITR 53 (Del). The Ld.DR further relied on the orders of lower authorities. 6. We have heard the learned representatives of both the parties and perused the materials available on record. It is admitted by the Ld.AR that the quantum additions pertaining to the impugned assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' case as well as in the case of the partner, Shri Dilip C Shah wherein the Assessing Officer has failed to specify on what ground section 271(1)(c) penalty has to be levied. At para 6 on page 9 of the order under section 271(1)(c) of the penalty order, the Assessing Officer has stated that "Therefore, considering the facts and circumstance of the case I am fully convinced that the assessee has concealed his income and furnished inaccurate particulars of income and hence penalty u/s 271(1)(c) of the I.T. Act, 1961 is levied". That being so, the Assessing Officer in the assessment order dated 28/12/2011 has made several additions, viz. on account of alleged sales, on account of commission on bogus sales, unexplained bank credits, cash deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty proceedings are initiated, where statutory notice is a mandatory requirement. Failure to do so will vitiate penalty proceedings in toto. The judgement of the Hon'ble jurisdictional Bombay High Court in Mohd. Farhan S. Shaikh (supra) has specified that even a penal provision with civil consequences must be construed strictly and any ambiguity in this must be decided in favour of the assessee. On the other hand, the decision cited by the Ld.DR in the case of CIT vs Harprashad & Co Ltd (supra) does not pertain to the facts of the present case. 7. Considering the issue in the light of the above observations, it is evident that the Assessing Officer has issued a vague and defective notice under section 274 r.w.s. 271(1)(c) dated 28/12/2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
