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Bhubaneswar Development Authority Versus DCIT, Circle-1 (1) , Bhubaneswar

2018 (1) TMI 288 - ITAT CUTTACK

Levy of penalty u/s.271(1)(c) - invalid notice - non striking of irrelevant words from notice - Held that:- Bare perusal of the notice issued u/s 271(1)(c) of the Act apparently goes to prove that the Assessing Officer initiated the penalty proceedings by issuing the notice u/s 274/271(1)(c) of the Act without specifying whether the assessee has concealed ''particulars of income" or assessee has furnished "inaccurate particulars of income", so as to provide adequate opportunity to the assessee t .....

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cer and is, thus, unsustainable. - Decided in favour of assessee. - ITA No. 419/CTK/2016 - Dated:- 3-1-2018 - Shri N. S. Saini, AM And Shri Pavan Kumar Gadale, JM Assessee by : Shri G.Naik/R.K.Kar, AR Revenue by : Shri S.K.Dash, CITDR ORDER Per Shri N.S.Saini, AM: This is an appeal filed by the assessee against the order of the CIT(A)-2, Bhubaneswar, dated 31.08.2016. 2. The sole issue involved in this appeal is that the CIT(A) erred in confirming the action of the Assessing Officer in confirmin .....

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otice issued u/s.274/271(1)(c) of the Act by the Assessing Officer whether the show cause is issued to the assessee for concealment of particulars of income or for furnishing inaccurate particulars of income. 5. He submitted that the Hon ble Supreme Court in the case of CIT vs. SSA s. Emarld Meadows dated 11th January, 2017 passed in Special Leave to Appeal (CC No.11485/2016)/73 taxmann.com 248 (SC) has held that Omission by the AO to explicitly specify in the penalty notice as to whether penalt .....

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uthorities and materials available on record. We find that the facts in the present appeal are not in dispute and the Assessing Officer in the order passed u/s.271(1)(c) of the Act dated 31.03.2014 levied penalty of ₹ 2,73,922/-. 8. Hon'ble Apex Court vide judgment in case of M/s. SSA's Emerald Meadows, (2016) 73 taxmann.com 248(SC) dismissed the Special Leave Petition filed by the Revenue against the judgment rendered by Hon'ble High Court of Karnataka whereby identical issue .....

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ncellation even when it has been proved beyond reasonable doubt that the assessee had concealed income in the facts and circumstances of the case? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in. holding that the penalty notice under Section 274 r.w.s. 271(1)(c) is had in law and. invalid in spite the amendment of Section 271(1 B) with retrospective effect and by virtue of the amendment, the assessing officer has initiated the penalty by prope .....

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tion 274 read with Section 271(1)(c) of the Income Tax Act, 1961 (for short 'the Act') to be bad in law as it did not specify which limb of Section 271(1)(c) of the Act, the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing of inaccurate particulars of income. .The Tribunal, while allowing the appeal of the assessee, has relied 01 the derision of the Division Bench of this Court rendered In the case of COMMISSIONER or INCOME TAX - .....

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e Act without specifying whether the assessee has concealed ''particulars of income" or assessee has furnished "inaccurate particulars of income", so as to provide adequate opportunity to the assessee to explain the show cause notice. Rather notice in this case has been issued in a stereotyped manner without applying any mind which is bad in law, hence is not a valid notice sufficient to impose penalty u/s 271(1)(c) of the Act. 10. The penalty provisions of section 271(1)( .....

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rt in the case of Manjunatha Cotton & Ginning Factory, 359 ITR 565 (Kar) observed that the levy of penalty has to be clear as to the limb under which it is being levied. As per Hon'ble High Court, where the Assessing Officer proposed to invoke first limb being concealment, then the notice has to be appropriately marked. The Hon'ble High Court held that the standard proforma of notice under section 274 of the Act without striking of the irrelevant clauses would lead to an inference of .....

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