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TMI Blog2024 (6) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... edings. The penalty could be levied only for a specific charge. Furnishing of inaccurate particulars of income would arise in a situation where the assessee has not disclosed the particulars correctly or the particulars disclosed by the assessee are found to be incorrect whereas concealment of particulars of income would mean that the assessee has concealed the income and has not reflected certain income, at all, in its return of income. Therefore, for each of the addition, AO has to specify as to which limb was applicable to the facts of the case and it could not be left to mere presumption or guess-work of the assessee. Framing of specific charges is sine-qua-non for levy of penalty since the assessee must be put to allegations for which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O to frame specific charge against the assessee and accordingly, the penalty would not be sustainable in the eyes of law. By deleting the impugned penalty, we allow the appeal. Consequently, going into the merits of the penalty has been rendered academic in nature. AO proposed penalty for under-reporting / misreporting of income and levied penalty in both the years for under-reporting of income - AO has invoked both the limbs viz. under-reporting / misreporting of income in the penalty notice. These two expressions, on the same analogy as held earlier, would be separate and distinct charges. Applying the same logic and reasoning as for AY 2016-17, we delete impugned penalty in both the years. Consequently, going into the merits of the penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d penalty proceedings by observing as under: The penalty proceedings u/s 271(1)(c) is initiated separately. 3. The penalty proceedings were initiated on 22-03-2022 and a notice was issued u/s 274 read with Section 271(1)(c), a copy of which is on record. The same read as under: - ..Whereas in the course of proceedings before me for the Assessment Year 2016-17, it appears to me that you have concealed the particulars of income of furnished inaccurate particulars of such income The same was followed by various other hearing notices. The assessee objected to the levy of penalty. However, rejecting the same, Ld. AO imposed penalty of Rs. 16.71 Lacs for concealment of income. 4. During appellate proceedings, the assessee, inter-alia, submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -09-2022 to submit that Ld. AO imposed penalty for concealment of income as clearly brought out in the said notice. 6. We are of the considered opinion that the two limbs viz. furnishing of inaccurate particulars of income and concealment of income are separate and distinct charges. It is quite clear that though impugned penalty has been initiated in the assessment order, however, in the notice dated 22-03-2022, the specific charge was not mentioned as is evident from extraction made by us in preceding para-3. Even in subsequent notice dated 13-09-2022, in para-3, Ld. AO had made allegation of under-reporting of income which is altogether a different charge and used in the context of Sec.270A. After perusal of these notices, it could be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we would have no hesitation in holding that these two charges are quite different charges and carry different connotation / meaning. The non-framing of specific charge would make the notice defective. It did not specify the ground under which the penalty was proposed. The notice does not press specific charge against the assessee and both limbs have been pressed against the assessee. Therefore, we would hold that the notice was issued in a mechanical manner and hence, not sustainable in the eye of law. Our view is duly supported by the cited decision of Tribunal in Shri D. Senthil Kumar vs. ACIT (supra). In this decision, co-ordinate bench relied on another decision of Tribunal in M/s PVP Ventures Ltd. vs. DCIT (ITA No.778/Chny/2019) which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court finally directed revenue to keep the show-cause notice in abeyance and issue a corrigendum / addendum / errata to the assessee clearly stating the grounds on which the notice was issued. In the present case, that stage is already over since the assessee is in second appeal before us. Therefore, in our considered opinion, this case, in fact, supports the case of the assessee that non-framing of specific charges would be fatal to penalty proceedings. 8. Considering the entirety of facts and circumstances of the case, we would hold that there was failure on the part of Ld. AO to frame specific charge against the assessee and accordingly, the penalty would not be sustainable in the eyes of law. By deleting the impugned penalty, we allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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