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TMI Blog2024 (11) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... ashed because: a) The Ld. CIT(A) has not controverted the facts submitted by the AR of the assessee stating the following: i) That the addition has been made on deemed basis u/s 2(22) (e) of the IT Act then how the question of submitting inaccurate particulars or concealment of the facts has arisen. ii) That when the addition has been made in the hands of Biggesto Technologies Ltd. u/s 148 of the IT Act for the same advance and for the same assessment year from the same party then how the same addition can be made again in the hands of Mrs. Sudesh Gupta for the same Assessment Year for the same amount and for the same advance u/s 2(22)(e) of the IT Act and how the same can be amounted to furnishing of inaccurate particulars or conceal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of another assessee has already been made, therefore the penalty proceedings are void ab initio and the Ld. CIT(A) has erred in law and facts by not adjudicating the same and ignoring the submission of the assessee. 3. That on the facts and circumstances of the case the Ld. CIT(A) has grossly erred in confirming penalty of Rs. 13,60,455/- u/s. 271(1)9c) and the same is liable to be deleted. 2. The brief facts of the case are that AO levied the penalty of Rs. 1,360,455/- u/s. 271(1)(c) of the Act. Prior to this, AO made the assessment u/s. 143(3)/147 on 24.11.2016. Addition of deemed dividend was made of Rs. 1,29,53,126/- u/s. 2(22)(e). The assessee was a common share holder in two companies - Kushang Technologies Ltd. (KTL) and Big ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Sahara India Life Insurance [2021] 432 ITR 84 (DHC) - Pr. CIT vs. Blackroak Securities Pvt. Ltd. - ITA 658/2023 (DHC) - PCIT vs. Gopal Kumar Goyal [2023] 153 taxmann.com 534 (Delhi)] - Biotronic Medical Devices Pvt Ltd. vs. ACIT, ITA No. 9568/Del/2019. (Del-Trib) - MA Projects Private Limited vs. ACIT, ITA no. 1636/Del/2022 . (Del-Trib) 5. Per contra, Ld. DR relied upon the orders of the authorities below. 6. Upon careful consideration, we find considerable cogency in the contention of the Ld. AR that notice dated 24.11.2016 under Section 274 r.w.s. 271 (1)(c) of the Act was issued to the Assessee wherein, no specific limb of the penalty indicated i.e., whether it is for concealment of particulars of income or for furnishing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.03.2019for A.Y 2009-10 and the penalty order dated 31.03.20190for A.Y 2010-11 are hereby quashed. Accordingly, Assessee's Grounds of Appeal in 1TA No. 9568/Del/2019 and lTA No. 9800/Del/2019 are allowed." 6.2 We further find that in the case of M.A. Projects Private Limited v. ACIT, ITA No.1636/Del./2022 vide order dated 12.4.2023, the Coordinate Bench of the Delhi Tribunal had dealt exactly the similar issue and held as under:- "8. Upon careful consideration and going through the notice submitted by the assessee at page no. 1 of paper book, we note that the notice is an omnibus notice without specifying the specific charge upon the assessee and in such circumstances, Higher Courts have held that penalty levied is not sustainable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder in Commissioner of Income Tax v. SSA's Emerald Meadows (2016) 73 Taxman.com 241 (Kar), the appeal against which was dismissed by the Supreme Court of India in SLP No. 11485 of 2016 by order dated 5th August, 2016. 22. On this issue again this Court is unable to find any error having been committed by the ITAT. No substantial question of law arises. " 10. Respectfully following the precedent as above, we note that due to defect in the penalty notice, penalty is not sustainable, hence the same is quashed. Since we have quashed the penalty on defective notice, merits are not being discussed as they are only academic in interest. " 7. In the background of the aforesaid discussions and respectfully following the aforesaid binding pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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