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TMI Blog2023 (12) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act without specifying any particular limb of the penalty and finally imposed the penalty for furnishing inaccurate particulars of income. The Assessee challenged the Imposition of penalty mainly on the basis of notice itself, therefore we deem it appropriate to decide the legal issue involved in the instant case, instead of going into other issue/merits of the case. The Hon'ble Karnataka High Court in the case of Manjunatha Cotton Ginning Factory, [ 2013 (7) TMI 620 - KARNATAKA HIGH COURT] observed that the levy of penalty has to be clear as to the limb under which it is being levied. As per Hon'ble High Court, where the Assessing Officer proposed to invoke first limb being concealment, then the notice has to be appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / Ld. Commissioner of Income Tax (Appeals) [in short, Ld. Commissioner ] under section 250 of the Income-tax Act, 1961 (in short, the Act ) for the A.Ys. 2009-10, 2011-12, 2013-14 2014-15 respectively. 2. Since the challenge in all the four appeals, relates to affirmation of levy of penalty under section 271(1)(c) of the Act, therefore the same were heard together and are being disposed off by this composite order and ITA no. 2528/Mum/2023 as a lead case. 3. Brief facts as involved in ITA no. 2528/Mum/2023 which are relevant for adjudication of the instant appeal are that the Assessee, a Private Limited Company, carries on the business of builder and developer. The Assessee e-filed its return of income for A.Y. 2009-10 on 29/09/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome after giving effect to the order of the Tribunal stood as below:- A.Y. Income after appeal effect As against assessed income A.Y. 2009-10 Rs. 2,06,083/- Rs. 10,13,170/- 5. On confirmation of the assessment by the CIT(A), the Assessing Officer initiated penalty proceedings under section 271(1)(c) of the Income-tax Act, 1961 and vide penalty order dated 29-09-2019, finally levied the penalty of Rs. 3,13,069/- under section 271(1)(c) of the Act @ 100% of the tax sought to be evaded on the income of Rs. 10,13,170/-. 6. On appeal, the Ld. Commissioner vide impugned order dated 29-05-2023, affirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncealment of income and thereafter issued the notice u/s 274 read with 271(1)(c) of the Act without specifying any particular limb of the penalty and finally imposed the penalty for furnishing inaccurate particulars of income. The Assessee challenged the Imposition of penalty mainly on the basis of notice itself, therefore we deem it appropriate to decide the legal issue involved in the instant case, instead of going into other issue/merits of the case. 10.1 The Hon'ble Apex Court in case of M/s. SSA's Emerald Meadows, (2016) 73 taxmann.com 248(SC) also dealt with the identical issue and dismissed the Special Leave Petition filed by the Revenue against the judgment rendered by Hon'ble High Court of Karnataka whereby ident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer under Section 274 read with Section 271(1)(c) of the Income Tax Act, 1961 (for short 'the Act') to be bad in law as it did not specify 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 furnishing of inaccurate particulars of income .The Tribunal, while allowing the appeal of the Assessee, has relied upon the decision of the Division Bench of this Court rendered In the case of COMMISSIONER or INCOME TAX -VS- MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. 4. In our view, since the matter is covered by judgment of the Division Bench of this Court, we are of the opinion, no substantial question of law ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ka High Court had followed the above judgment in the subsequent order in Commissioner of Income Tax v. SSA s Emerald Meadows (2016) 73 Taxman.com 241(Kar), the appeal against which was dismissed by the Supreme Court of India in SLP No: 11485 of 2016 by order dated 5th August, 2016. 22. On this issue again this Court is unable to find any error having been committed by the ITAT. No substantial question of law arises. Thus, notice under Section 271(1)(c) r.w.s. 274 of the Act itself is bad in law. We, therefore, set-aside the order of the CIT(A) and direct the Assessing Officer to cancel the penalty so levied. 10.4 The penalty provisions of section 271(1)(c) of the Act are attracted, where the Assessee has concealed the particul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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