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TMI Blog2024 (6) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... itself is bad in law, and consequently the penalty levied is vitiated. Same issue has come up for consideration before the Full bench of Mohd. Farhan A. Shaikh [ 2021 (3) TMI 608 - BOMBAY HIGH COURT (LB)] wherein their Lordships has held that the show cause notice issued prior to levy of penalty without specifying the fault/charge against which the assessee would vitiate the penalty itself. Also we find that in the quantum assessment estimated addition of 100% of purchases was made by AO, which was reduced to 30% of purchase by the Ld. CIT(A). In such a scenario, penalty u/s 271(1)(c) of the Act was not warranted because estimated addition has inherent subjectivity involved. Therefore, no penalty is warranted. Therefore, we direct the delet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by the AO u/s 271(1)(c) of the Income Tax Act, 1961, Act (hereinafter the Act ) to the tune of Rs.16,17,140/-. 3. The assessee has challenged the penalty levied by AO u/s 271(1)(c) of the Act by urging inter-alia that the notice proposing penalty issued by the AO dated 30.12.2017 u/s 274 r.w.s 271 of the Act is bad in law, since assessee has been called upon to defend both the faults for non-levy of penalty. For buttressing this contention, he drew our attention to the copy of the notice which is found placed at page no. 35 of PB. On perusal of the same it reveals that the notice are in the nature of an omnibus show cause notice issued without deleting or sticking down the in-applicable part. And same is the case with the penalty order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... division bench in the case of CIT Vs. Smt. Kaushalya (1995) 216 ITR 660 (Bom) does not lay down the correct proposition of law. Moreover, we find that in the quantum assessment estimated addition of 100% of purchases was made by AO, which was reduced to 30% of purchase by the Ld. CIT(A). In such a scenario, penalty u/s 271(1)(c) of the Act was not warranted because estimated addition has inherent subjectivity involved. Therefore, no penalty is warranted. Therefore, we direct the deletion of penalty. 4. Coming to ground no. 4 of the assessee s appeal wherein assessee claims to have inadvertently remitted fees of Rs.10,000/- vide challan no. 01338 dated 03.07.2023 towards fees of this penalty appeal, whereas according to assessee, the correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Tribunal. 4. We have heard both the parties. Admittedly, the appeal in this case relates to an order passed under s. 263. Therefore, the case of the assessee is covered under a residuary cl. (b) of sub-s. (6) of s. 253 of the Act. The assessee was required to pay only a fee of Rs. 500. In view of the above, the assessee is entitled to refund of excess fee paid of Rs. 5,021. The AO is directed to refund this amount either by way of adjusting the same against the outstanding demand, if any, or by way of grant of refund within a period of one month from (the date of receipt of this order. We order accordingly. 5. According to assessee by mistake it has remitted appeal fees of Rs.10,000/- while filing the captioned appeal; and according ..... X X X X Extracts X X X X X X X X Extracts X X X X
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