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2019 (6) TMI 1215 - ITAT MUMBAIPenalty u/s 271(1)(c) - wrong claim of TDS which not belong to the assessee but appeared in the form No.26AS - non specific charge - defective notice - HELD THAT:- As during the assessment proceedings the AO rejected the claim of the assessee for the TDS and there was no addition made to the income of the assessee of any kind whatsoever qua this TDS claim. In our view, the penalty under section 271(1)(c) can only be initiated and levied if there is a concealment of income or furnishing of inaccurate particulars of income on the part of the assessee. However, in this particular case it was a wrong claim of TDS and thus the provisions of section 271(1)(c) do not apply to the present case. Even for the purpose of levying of penalty, the mechanism provided in the section itself provides for the calculation of penalty which is 100% to 300% of the tax sought to be evaded. Even on legal issue the assessee has got a very strong case as the penalty has been initiated on both the charges. The penalty notices u/s 271(1)(c) dated 09.03.2016 and 22.08.2016 were issued in a mechanical manner without mentioning or stating the specific charge on which the penalty was proposed to be levied without any application of mind. Similarly the order of imposing penalty was passed by the AO on both the charges As decided in SHRI SAMSON PERINCHERY [2017 (1) TMI 1292 - BOMBAY HIGH COURT] penalty can be levied where the specific charge was not mentioned in the notice issued u/s 274 read with section 271(1)(c) as the assessee is not confronted and given an opportunity to respond to the charge on which the penalty was levied and the penalty imposed was held to be invalid. - Decided in favour of assessee.
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