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2018 (2) TMI 963 - AT - Income TaxPenalty u/s 271(1)(c) - expenses incurred on Linkside building claimed as capital expenditure or revenue expenditure - defective notice - non specify the limb of Sec. 271(1)(c) for which the penalty proceedings had been initiated - Held that:- We find that the issue involved in the present case is squarely covered by the case of Meherjee Cassinath Holdings Vs. ACIT, Circle-4(2), Mumbai (2017 (5) TMI 904 - ITAT MUMBAI) wherein concluded that as the non striking off the irrelevant charge in the notice clearly reflects the non application of mind by the A.O, therefore, the order passed under Sec. 271(1)(c) in the backdrop of the said jurisdictional defect would be rendered as invalid and void ab initio. We find ourselves to be in agreement with the view taken by the CIT(A) that now when the only valid return of income was filed by the assessee as on 31.03.2011, therefore, the A.O could have imposed penalty only by pitting the income assessed vide order dated 19.03.2015, as in comparison to the income returned by the assessee in its return of income filed on 31.03.2011 - assessee had claimed the expenditure incurred on Linkside building as a capital expenditure in its original return of income, therefore, there was no basis for characterising the same as the concealed income of the assessee - as the assessee had duly disclosed the expenditure incurred on Linkside building in its return of income, therefore, merely for the reason that the said expenditure was claimed as a revenue expenditure would not justify imposition of penalty under Sec. 271(1)(c), for the reason that the same was held by the A.O to be in the nature as that of a capital expenditure. - Decided in favour of assessee
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