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2022 (7) TMI 112 - ITAT AHMEDABADPenalty u/s 271(1)(c) - Defective notice u/s 274 - mandation of mentioning correct limb for leveying penalty - HELD THAT:- It is well-settled law on the subject as held by various Courts and Tribunals that Section 271(1)(c) penalty order is not sustainable if AO has not mentioned the specific charge in respect of which i.e. whether the penalty is being levied for “concealment of income” or “for furnishing inaccurate particulars of income”, which are distinct and separate offences. The Supreme Court in the case of CIT v. SSA'S Emerald Meadows[2016 (8) TMI 1145 - SC ORDER] held that where Tribunal, relying on a decision of Karnataka High Court, allowed appeal of assessee holding that notice issued under section 274 read with section 271(1)(c) was bad in law, as it did not specify under which limb of section 271(1)(c) penalty proceedings had been initiated and High Court, on appeal, held that there was no substantial question of law arising for determination, SLP was to be dismissed. Even on merits, in respect of addition under section 68 of the Act on account of cash deposited in the bank, we note that the AO in the assessment order has made a specific noting that the amount in question was received on 04-04- 2014, which falls outside the purview of this assessment year under consideration. Further, in respect of addition the assessee has submitted that this was an inadvertent mistake in mentioning the incorrect salary figure, which was rectified before the AO during the course of assessment proceedings. It is well-settled proposition that penalty cannot be imposed merely because assessee accepted assessment order levying tax and interest, unless it is discernible from assessment order that addition was on account of concealment (CIT v. Manjunatha Cotton & Ginning Factory[2013 (7) TMI 620 - KARNATAKA HIGH COURT] - Therefore, in view of the above facts and the legal position discussed above, we are of the considered view that in the instant set of facts, penalty proceedings are liable to be set aside. Appeal of the assessee is allowed.
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