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TMI Blog2024 (10) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and order of penalty imposed on concealment of income . Thus, by following the above ratio, we hold that, the penalty order passed u/s 271(1)(c) of the Act by the AO and the order of the CIT(A) in confirming the penalty order are erroneous. Appeal filed by the assessee is allowed. - Shri Prashant Maharishi, Accountant Member And Shri Yogesh Kumar U.S., Judicial Member For the Appellant : Shri Sunil Porwal, CA (Through Hybrid Mode) For the Respondent : Shri Karni Dan, Addl. CIT (Sr. DR) ORDER PER YOGESH KUMAR U.S.: This appeal filed by the Assessee against the order of Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, (NFAC) Delhi, [Ld. CIT(A) , for short] dated 25/01/2024 for Assessment Year 2015-16. 2. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the assessee has filed an application for condonation of delay before the Ld. CIT(A), but the Ld. CIT(A) failed to consider the same and taken us though the application for condonation of delay filed before the CIT(A). The Ld. Counsel for the assessee further submitted that the imposition of penalty is erroneous since the Ld. AO while framing the assessment, recorded the satisfaction for initiating the penalty on concealment of income by furnishing the inaccurate particulars of income . But the penalty order has been imposed on the ground that the assessee has concealed the income by concealment of particulars thereof . The Ld. Counsel for the assessee accordingly sought of allowing the appeal. The Ld. Counsel for the assessee al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osing penalty on one or the other, or both grounds mentioned in Section 271(1)(c), does a mere defect in the notice--not striking off the irrelevant matter--vitiate the penalty proceedings? came for consideration by the Hon'ble Bombay High Court (full bench at Goa) in the case of Mr. Mohd. Farhan A. Shaikh vs. ACIT [434 ITR (1)] and the Hon'ble High Court, while deciding the issue in favour of the Assessee held as under:- Question No. l: If the assessment order clearly records satisfaction for imposing penalty on one or the other, or both grounds mentioned in Section 271(1)(c), does a mere defect in the notice--not striking off the irrelevant matter--vitiate the penalty proceedings? 181. It does. The primary burden ties on the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the reasons why penalty should be initiated. So, the assessee, stresses Kaushaiya, fully knew in detail the exact charge of the Revenue against him . For Kaushaiya, the statutory notice suffered from neither non-application of mind nor any prejudice. According to it, the so-called ambiguous wording in the notice [has not] impaired or prejudiced the right of the assessee to a reasonable opportunity of being heard . It went onto observe that for sustaining the piea of natural justice on the ground of absence of opportunity, it has to be established that prejudice is caused to the concerned person by the procedure followed . Kaushalya doses the discussion by observing that the notice issuing is an administrative device for informing the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d concealed his income or he had furnished inaccurate particulars. 188. We may, in this context, respectfully observe 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 I.T.A.No. 1409/Del/2016 ambiguity. Therefore, Dilip N. Shroff disapproves of the routine, ritualistic practice of issuing omnibus show-cause notices. That practice certainly betrays non application of mind. And, therefore, the infraction of a mandatory procedure leading to penal consequences as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuing notices in printed form without deleting or striking off the inapplicable parts of that generic notice. Conclusion: We have, thus, answered the reference as required by us; so we direct the Registry to place these two Tax Appeals before the Division Bench concerned for further adjudication. 8. Ratio of this full bench decision of the Hon'ble Bombay High Court (Goa) squarely applies to the facts of the present Assessee s case as a joint satisfaction for concealment of income and for furnishing inaccurate particulars has been recorded in the Assessment Order and the penalty proceedings has been initiated and order of penalty imposed on concealment of income . Thus, by following the above ratio, of the full bench of Bombay High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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