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2019 (8) TMI 454 - ITAT VISAKHAPATNAMCondonation of delay - delay of 419 days - HELD THAT:- Wife of Sri P.B. Srinivas, who is the Managing Partner of the firm is suffered with cancer, not only that another partner Smt. P. Satya Shanti, who is the sister of Sri P.B. Srinivas was also found suffering from breast cancer. She was already a heart patient. As her condition was serious, taken to Apollo hospitals in Ahmedabad and Sri P.B. Srinivas being the only brother, had to attend her treatment. Ultimately she died on 04/06/2017. Under these facts and circumstances of the case, the assessee has not drawn attention on the order passed by the ld. CIT(A). When the Income-tax Department pursued the matter in respect of collection of tax, it came to the notice of the assessee and immediately filed appeal against the order of the ld. CIT(A). By considering the affidavit filed by the assessee and also the details explained by the assessee, we find that there is a sufficient cause for the assessee in non-filing the appeal in time. In our opinion, it is a fit case to condone the delay. Admission of additional ground - penalty u/s 271(1)(c) levied - HELD THAT:- We find that the issue raised by the assessee is a legal issue and all the facts are available on record. In this context, the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs. CIT [1996 (12) TMI 7 - SUPREME COURT] has considered the issue and held that “where the tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee‟. From the above, it is very clear that there is no fresh investigation on facts is required, the additional ground raised by the assessee has to be adjudicated, hence, the same has to be admitted by following the judgment of the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd., (supra), the additional ground raised by the assessee is admitted. Penalty u/s 271(1)(c) - non-striking of the irrelevant portion of the notice issued u/sec. 274 - whether the notice issued by AO is valid or not? - HELD THAT:- The decision of Hon'ble High Court of Telangana & A.P. in the case of Smt. Baisetty Revathi [2017 (7) TMI 776 - ANDHRA PRADESH HIGH COURT] has considered the very same issue and held that non-striking of the irrelevant portion of the notice issued u/sec. 274 is invalid. The very same judgment has been followed by the coordinate bench of this tribunal in the case of Konchada Sreeram [2017 (11) TMI 1164 - ITAT VISAKHAPATNAM] . Therefore, respectfully following above referred to judicial precedents, we hold that the notice issued under section 274 read with section 271, dated 30/03/2014 is invalid and, therefore penalty order passed by the Assessing Officer, dated 26/09/2014 is hereby cancelled.
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