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TMI Blog2024 (7) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... edings must contain a specific charge out of the two charges contained in section 271(1)(c) for imposing a penalty on the assessee. We note that in the present case before us, the facts and circumstances are altogether different from the peculiar set of facts as contained in the case of Veena Estates (P) Ltd [ 2024 (1) TMI 701 - BOMBAY HIGH COURT] - The observations and findings arrived at by the Hon ble Court in that case are specific to those peculiar set of facts. In the case of Mohd. Farhan A. Shaikh [ 2021 (3) TMI 608 - BOMBAY HIGH COURT (LB)] held that 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking the wrong grounds of appeal of in para 3 of the order. 2.1 Assessee has also raised an additional ground by application dated 19.06.2024 which is purely legal in nature and does not require examination of additional facts. The said additional ground is reproduced as under: 1. In the facts and circumstances of the case and in law, the Learned Assessing Officer had erred in initiating the penalty proceeding by issuing the impugned show cause notice dated 30.11.2017 under section 274 read with section 271(1)(c)- without striking off the irrelevant/in-applicable limb; thereby issuing a defective notice which is bad in the eyes of law as held by Hon'ble Jurisdictional High Court in the case of Mohd. Farhan A. Shaikh vs. DCIT [2021] 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 158 taxmann.com 341 (BOM) to counter the submissions made by the Ld. Counsel for the assessee. She submitted that according to this decision, it is not a case of any real prejudice or a case of breach of principles of natural justice. The plea of defect in the notice cannot be an empty plea. Such plea can be accepted only when a demonstrable prejudice was to be set out by the assessee which would go to the root of the adjudication. According to her, in the said decision, the test of prejudice is inapplicable in the facts of the case. Thus, according to her, there is no defect in the notice so issued and the penalty so imposed is rightfully done by the Ld. Assessing Officer. 7. In the rebuttal, Ld. Counsel for the assessee strongly asserte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee that in these circumstances, the Court should accept the notice as issued to the assessee u/s. 274 of IT Act was defective, and hence the proceedings would stand covered by the decision of the Coordinate Bench in this Court in Ventura Textiles Ltd. (Supra) . 7.3. On this above questions raised by the Hon ble Court unto itself, it expressed its opinion in para 35 to point out that case of Ventura Textile Ltd. was a case wherein the Court was considering an appeal u/s. 260A of the IT Act, whereby for the first time an issue was raised as to whether the order passed u/s. 271(1)(c) of the IT Act was bad in view of the fact that both, at the time of initiation as well as at the time of imposition of the penalty, the Assessing Officer was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et of facts. In the case of Mohd. Farhan A. Shaikh (Supra), the Hon ble Jurisdictional High Court of Bombay had held 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. 9. We therefore, respectfully following the judicial precedent in the case of Hon ble Jurisdiction High Court of Bombay in the case of Mohd. Farhan A. Shaikh (Supra) delete the penalty imposed in the present case, since similar facts are present in this appeal. Accordingly, grounds ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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