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TMI Blog2024 (6) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... y is not sustainable on legal grounds. The issue was agitated before the ld. CIT(A) but the issue is not adjudicated in appeal order. The ld. DR is unable to submit any contrary judgment before the bench. Hence, penalty U/s 271(1)(c) is quashed. We allow the appeal of the assessee. - Shri Anikesh Banerjee, Judicial Member And Shri Gagan Goyal, Accountant Member For the Assessee : Shri Anuj Kisnadwala For the Respondent : Shri H.M. Bhatt, (SR.DR) ORDER PER ANIKESH BANERJEE, J.M: These cross appeals preferred against the order of the Ld. National Faceless Appeal Centre, Delhi [for brevity, Ld.CIT(A) ] passed under section 250 of the Income-tax Act, 1961 (in short, the Act ), for Assessment Year 2006-07, date of order 21.09.2023. The impugned order was emanated from the order of the Ld. Income-tax Officer, Ward 22(1)(3), Mumbai (in short, the A.O. ) passed under section 271(1)(c) of the Act, date of order 30/03/2016. 2. The grounds raised by the parties are as under:- Assessee: 1. The Ld.CIT(A) NFAC has erred in law and on facts in confirming the penalty order passed by the Assessing Officer which is bad in law as the notice issued by him u/s 271(1)(c) of the Act does not specify th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a ) wherein it was held that value of development rights had been taken on 01.0.1981, as cost of acquisition for indexation in the case where there is no cost of Indexation of assets ? 5. Whether on the facts and in the circumstances \ of the case and in law, the Ld C1T(A), has erred in ; deleting the penalty u/s 271(1)(c) of the Act, without considering the fact Assessee society is owner of the Land/Plot /property as well as of TDR/FSI allotted to in the ratio 1:1 as per the Development Control Regulation, 1991, by virtue of owning the contiguous four plots and henceforth the assessee society alone is liable to pay applicable Long Term Capital Gain arising out of transfer of such TDR/FSI? 6. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the penalty u/s 271(1)(c) of the Act, without considering fact that section 30 of the Maharashtra Co-op Housing Society Act, defines that the society is a legal person and can hold property in its name and the members are not the owner of land /right therein. Therefore, the consideration received by the society members is arising as a result of transfer of capital assets by the assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is duly inserted as below:- 5. The Ld.AR prayed that the notice itself is defective and not mention the limb whether the concealment or inaccurate particulars of income. So the entire penalty proceedings will be quashed. 6. The Ld.DR fully relied on the order of the Ld.AO and argued vehemently. 7. We heard the rival submissions and considered the documents available in the record. The Ld.AR placed that the issue of defective notice which was already challenged before the Ld.CIT(A). The relevant paragraph No.7 of appeal order is reproduced as below:- 07. Additional ground of appeal The Appellant took the following additional ground of appeal in the appellate proceedings:- On the facts and circumstances of the case and in law, the Penalty Order passed under section 271(1)(c) of the Act is bad in law. The statement of facts submitted, alongside was as under: The AO issued m notice under section 274 r.w.s 271(1)(c) dated 27.03.2014, received on 02.04.2014. In the penalty notice, the AO has not specified the limb under which the penalty has to.be levied i.e. whether for the concealment of particulars of income or for furnishing inaccurate particulars of such income. Under such circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of law. We have noted the factual position. The assessee understood the notice to be under both heads, namely, furnishing of inaccurate particulars and concealment of income. This is evident from the assessee's reply dated 08.04.2015 to the show cause notice dated 12.03.2015. Therefore, the decision in the case of K.Lubna does not help the assessee, as there is no substantial question of law arising from such contention. 10. We find that the issue of the notice was not discussed in the order. But only rejected on the basis of the substantial question of law. Hon ble Lordship rejected the issue as there is no substantial question of law. The issue is squarely covered by the judgement of Hon ble Jurisdictional High Court in the case of Mohammed Farhan A. Shaikh Vs. PCIT (125 taxamnn.com 253) vide order dt. 11.3.2021. The relevant paragraphs are reproduced as below:- 179. Besides, the prima facie opinion in the assessment order need not always translate into actual penalty proceedings. These proceedings, in fact, commence with the statutory notice under section 271(1)(c) read with section 274. Again, whether this prima facie opinion is sufficient to inform the assessee about ..... X X X X Extracts X X X X X X X X Extracts X X X X
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