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2022 (6) TMI 835 - ITAT PUNEPenalty u/s 271(1)(c) - Defect in notice u/s 274 - Addition towards difference in silver stock - assessee was having excess stock of silver of 30,423.95 grams - Neither any surrender was made on this score nor such an income was offered in the return filed - addition was made by the AO for such sum along with that on account of excess Gold found during the survey and Cash difference - HELD THAT:- Notice u/s. 274 r.w.s. 271(1)(c) was initially issued on 07-03-2014 at the time of completion of the assessment by keeping both the limbs intact, namely, "concealed the particulars of income and furnishing of inaccurate particulars of income". After the passing of the order by the ld. CIT(A) in quantum proceedings, the AO issued notice u/s. 274 r.w.s. 271(1)(c) dated 05-03-2018 before imposing the penalty. This notice also talks of both the limbs of section 271(1)(c), namely, "concealing the particulars of income and furnishing of inaccurate particulars of income". Thus, it is apparent that as against the sole addition of excess stock of silver, the AO issued notice u/s. 274 by keeping both the limbs of penalty u/s. 271(1)(c) alive As decided in MR. MOHD. FARHAN A. SHAIKH [2021 (3) TMI 608 - BOMBAY HIGH COURT] defect in notice of not striking out the irrelevant words vitiates the penalty even though the AO had properly recorded the satisfaction for the imposition of penalty in the order u/s. 143(3) . As it is clear that where the charge is not properly set out in the notice u/s. 274, viz., both the limbs stand therein without striking off the inapplicable limb, the penalty order gets vitiated.- Decided in favour of assessee.
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