TMI Blog2018 (4) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... y condition of making the assessee known about the grounds on which the AO propose to levy the penalty and consequently denying the assessee proper opportunity to contest and meet the case of the AO. In case where the assessee has disclosed unaccounted income during the course of search and seizure action and consequently surrendered the said income in the return filed u/s 153A then the question of making the assessee known about the charge does not arise. In the case in hand apart from the income surrendered by the assessee as disclosed in the statement u/s 132(4) of the Act the AO has also made various additions while framing the assessment u/s 153A of the Act. Therefore, this is not a case of simple levy of penalty against undisclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax Act, arbitrarily. 1.1 That the Ld. CIT(A) has further erred in upholding the penalty on the addition of ₹ 1 lac without appreciating the fact that the addition were made on estimate basis without bringing on record any material especially when the details supplied in the return was not found to be incorrect / erroneous or false, hence the penalty levied u/s 271(1)(c) deserves to be deleted in toto. 1.2 That the Ld. CIT(A) has failed to appreciate the fact that the Id. AO has passed the impugned order without establishing any mala fide intention of the assessee and by ignoring the fact that every single detail as asked for has been provided by the assessee and nothing has been concealed nor any inaccurate particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the additional ground whereby the assessee has challenged the validity of notice issued u/s 274 r.w.s. 271(1)(c) for want of specifying the default whether concealment of income or furnishing inaccurate particulars of income. The ld. AR of the assessee has submitted that the additional ground raised by the assessee is legal in nature and goes to the root of the matter. Further, for adjudication of the additional ground no fresh investigation of fact is required except those already on record. Thus, the ld. AR has submitted that in view of the decision of the Hon ble Supreme Court in case of NTPC vs. CIT 229 ITR 383 the Tribunal may admit the additional ground which is legal in nature and arising from the facts which are on record of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the assessment record then, in view of the decision of Hon ble Supreme Court in case of NTPC vs. CIT (Supra) the additional ground raised by the assessee is admitted for adjudication on merits. 6. On merits of the additional ground the ld. AR of the assessee has submitted that since the notice issued u/s 274 has not specified the charge for levy of penalty whether it was concealment of income or furnishing inaccurate particulars of income then the said notice suffers from illegality and therefore, in view of the decision of Hon ble Karnataka High Court in case of CIT vs. Manjunatha Cotton and Ginning Factory 359 ITR 565 the order passed by the AO u/s 271(1)(c) of the Act is not sustainable in law and liable to be quashed. The ld. AR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, there is no defect in the notice issued u/s 274 of the Act. The ld. DR has further contended that the assessee did not raise these issues/grounds before the AO or ld. CIT(A). Hence, the nature of default was not questioned before the authorities below. The ld. DR relied upon the various decision as under:- CIT vs. Usha International Ltd. 212 Taxman 519. Shri Rajnish Vohra vs. DCIT vide dated 31.10.2012 in ITA No. 516/CHD/2012. Snita Transport (P.) Ltd. vs. ACIT 42 taxmann.com 54. Bharat Kumar g. Rajani vs. DCIT 40 Taxmann.com 344. Shri Satya Narain Gupta vs. DCIT vide dated 02.01.2018 in ITA No. 823/JP2016. 8. We have considered the rival submissions as well as the relevant materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the assessment regarding existence of the grounds on which the penalty proceedings would be initiated against each and every item of income and addition, which are subject matter of assessment. Hence, though the relevant facts and records are available on the assessment proceedings however, in view of the complexity the various facts and records which are available on the assessment record but are not disclosed in the impugned orders passed u/s 271(1)(c) of the Act and consequential the impugned order passed by the ld. CIT(A) due to the reasons that the assessee did not raise this issue before the authorities below, the same cannot be analyzed and appreciated in the absence of the record produced before us. Since, the assessee has first ..... X X X X Extracts X X X X X X X X Extracts X X X X
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