TMI Blog2005 (1) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... cer could not have invoked Explanation 1 to section 271(1)(c) of the Act without giving an indication of the same in the notice issued to the respondent. - the appeal is allowed. - order passed by the Tribunal is set aside and the case is remanded to it for fresh adjudication of the appeal filed by the respondent. - - - - - Dated:- 20-1-2005 - Judge(s) : G. S. SINGHVI., VINEY MITTAL. JUDGMENT The judgment of the court was delivered by G. S. Singhvi J.- In this appeal filed under section 260A of the Income-tax Act, 1961 (for short, "the Act"), the appellant has prayed for determination of the following question of law: "Whether, on the facts and in the circumstances of the case, the hon'ble Income-tax Appellate Tribunal was justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in its entirety because the notice issued by the Assessing Officer did not contain any indication that he intended to take into consideration Explanation 1 appearing below section 271(1)(c) of the Act. The Tribunal upheld the contention of the respondent and quashed the penalty order. We have heard Shri Rajesh Bindal, learned counsel for the appellant, and Shri Akshay Bhan, learned counsel for the respondent and perused the record. The question whether the penalty imposed under section 271(1)(c) of the Act can be annulled on the ground that the notice issued by the competent authority did not contain specific reference to Explanation 1 appended to that section is no longer res integra. In K. P. Madhusudhanan v. CIT [2001] 251 ITR 99 (SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. Shri Akshay Bhan, learned counsel for the respondent fairly stated that in view of the law laid down by the Supreme Court, he cannot persuade the court to affirm the view taken by the Tribunal on the validity of the penalty notice issued by the Assessing Officer, but argued that the court may not set aside the impugned order because the Tribunal has given other reasons for not sustaining the penalty. In the backdrop of the submission of learned counsel, we have carefully scrutinised the order of the Tribunal but have not felt persuaded to agree with him. In paragraph 5 of the impugned order, the learned Judicial Member of the Tribunal did make a reference to some other factors which could justify the annulment of the penalty ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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