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TMI Blog2023 (7) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... d no notice has been issued. 2. That Learned commissioner appeals has upheld the order where Assessing Officer has not specified Concealment of Income or furnishing inaccurate particulars under Section 271(1)(c). 3. That Learned commissioner appeals has upheld the order where Assessing officer has provided no reasonable opportunity before imposing penalty. 4. That Learned commissioner appeals has upheld the order where Assessing Officer has levied penalty on estimated additions which is not correct. Therefore the order is liable to be deleted. 5. That Learned commissioner appeals has upheld the order where Assessing officer has levied Penalty on deceased person which is unlawful. 6. That Learned commissioner appeals has upheld the order where Assessing Officer where he has increased income to maximum level which is not correct. 7. That Learned commissioner appeals has upheld the order where Assessing Officer has made additions not based on any document. 8. That Learned commissioner appeals has upheld the order where Reopening is bad in law. 9. That Learned commissioner appeals has upheld the order ignoring that No penalty can be imposed on time barred assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk 13,30,496 4. Unexplained household expenses 18,00,000 Total 48,98,880/- 5. Pursuant to the assessment order dated 05/12/2011, the A.O. initiated separate penalty proceedings u/s 271(1)(c) of the Act and notice u/s 274 of the Act was issued on 14/03/2012 asking Sh. Ashok Malhotra to show cause as to why penalty should not be imposed. The penalty proceedings were kept in abeyance as the assessee had filed an appeal against the assessment order. It is found that the said sh. Ashok Malhotra died on 30/06/2016 but the penalty order u/s 271(1) (c) came to be passed on 31/03/2017 against Sh. Ashok Malhotra. Similar penalty orders have been passed on 31/03/2017 against Sh. Ashok Malhotra by the A.O. for the Assessment Year 2004-05 to 2012-13. 6. Aggrieved by the orders of the penalty dated 31/03/2017 for Assessment Year 2001-02, 2004-05 to 2012-13, passed against Sh. Ashok Malhotra, the legal heirs of Sh. Ashok Malhotra filed appeals before the CIT(A) challenging the orders of the penalty. The ld. CIT(A) vide order dated 25/02/2019, dismissed the Appeals filed by the legal heirs of the assessee. Aggrieved by the order dated 25/02/2019 passed by the CIT(A), the heirs o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axmann.com 40 (SC) held that: SLP dismissed against High Court's ruling that notice issued under section 153C against dead person is unenforceable in law and in such case revenue cannot contend that as they have no knowledge about death of assessee, they are entitled to plead that notice is not defective. (ii) The Hon'ble Apex Court in the case of ITO Ward 1(3)(7), Surat v. Durlabhbhai Kanubhai Rajpara [2020] 114 taxmann.com 482 (SC) held that: Where High Court set aside reassessment proceedings on ground that no valid notice under section 148 could be issued against a dead person, SLP filed against said order was to be dismissed. (iii) The Hon'ble High Court of Gujarat in the case of Krishnaawtar Kabra v. ITO [2022] 140 taxmann.com 423 (Gujarat) held that: Reopening notice under section 148 issued upon deceased assessee was void ab initio and therefore, consequential proceedings and orders passed thereon were without any jurisdiction and were to be quashed and set aside. (iv) The Hon'ble High Court of Jharkhand in the case of Sandeep Chopra v. PCIT [2023] 149 taxmann.com 225 (Jharkhand) held that: Where during original assessment proceeding itself, orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 271(1)(c), does a mere defect in the notice--not striking off the irrelevant matter--vitiate the penalty proceedings? 181. It does. The primary burden ties on the Revenue. In the assessment proceedings, it forms an opinion, prima facie or otherwise, to launch penalty proceedings against the assessee. But that translates into action only through the statutory notice under section 271(1)(c), read with section 274 of IT Act. True, the assessment proceedings form the basis for the penalty proceedings, but they are not composite proceedings to draw strength from each other. Nor can each cure the other's defect. A penalty proceeding is a corollary; nevertheless, it must stand on its own. These proceedings culminate under a different statutory scheme that remains distinct from the assessment proceedings. Therefore, the assessee must be informed of the grounds of the penalty proceedings only through statutory notice. An omnibus notice suffers from the vice of vagueness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-application of mind when the irrelevant portions of the printed notices are not struck off ? 187. In Dilip N. Shroff, for the Supreme Court, it is of "some significance that in the standard Pro-forma used by the 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". 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 issuing omnibus show-cause notices. That practice certainly betrays non application of mind. And, therefore, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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