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2018 (10) TMI 421 - AT - Income TaxPenalty levied u/s.271(1)(c) - reopening of assessment - assessee contented that show cause notice was never served on the assessee and therefore penalty order suffers from principles of natural justice and barred by limitation - assessee filed revised return voluntarily - Defective notice - Held that:- valid reason to disturb the finding that the penalty order suffers from principles of natural justice and barred by limitation. The Revenue could not produce any evidence to show that the penalty order was in fact passed on 30.09.2014 and why it could not be served immediately after passing the order and why it took one month to serve the order. The conduct shows that the order was passed beyond limitation period but was dated 30.09.2014. It is not in dispute that the assessee filed revised return voluntarily on 31.10.2011 and this return was regularized by issue of notice u/s. 148 on 25.03.2013. From the reasons recorded for reopening there is no material on record to suggest that there is a concealment of income by the assessee, except the revised return where the assessee himself has offered the additional income. The reasons for reopening clearly specify that the assessee has voluntarily accepted and offered the income for the Assessment year 2006-07 on account of not maintaining the records of closed bank account and this is said to be the reason to believe that the income escaped assessment which in our view is not correct. There is no enquiry at all, there is nothing on record to suggest that the income had escaped assessment and the assessee offered additional income voluntarily and the Department has not detected any concealed income of the assessee. No detection of any concealed income by the assessee and the assessment was reopened u/s.148 is only to regularize the revised return filed by the assessee who offered an additional income - No infirmity in the order passed by the Ld.CIT(A) in deleting the penalty. Non-striking off of irrelevant charge in the notice in initiation penalty proceedings - Held that:- Identical situation has been considered by the Coordinate Bench in Meherjee Cassinath Holdings v. ACIT [2017 (5) TMI 904 - ITAT MUMBAI] said that action of the Assessing Officer in non-striking off relevant clause in the notice shows that the charge being made against the assessee is not firm therefore proceedings suffer from non-compliance with principles of natural justice in as much as the Assessing Officer himself is not sure of the charge and the assessee is not made aware as to which of the two limbs of section u/s. 271(1)(c) of the Act he has to respond. The notice issued by the Assessing Officer u/s. 274 r.w.s. 271(1)(c) of the Act is on account of non-application of mind and therefore on this account itself the penalty imposed u/s.271(1)(c) is liable to be deleted.- decided in favour of assessee.
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