TMI Blog2018 (4) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... s, thus, unsustainable.- Decided in favour of assessee - ITA No.458/CTK/2017 - - - Dated:- 23-4-2018 - SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER For The Assessee : Shri B.R.Panda/Bhimsen Sahoo, AR For The Revenue : Shri A.Tigga, DR ORDER Per N.S.Saini, AM This is an appeal filed by the assessee against the order of the CIT(A)-1, Bhubaneswar dated 4.8.2017 for the assessment year 2009- 2010. 2. The only issue involved in this appeal is that the CIT(A) erred in confirming the levy of penalty u/s.271(1)(c) of the Act of ₹ 2,58,767/- made by the Assessing Officer. 3. At the outset, ld Authorised Representative of the assessee filed before us copy of notice issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) dated 30.3.2016 levied penalty of ₹ 2,58,767/- . 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 was decided in favour of the assessee. Operative part of the judgment in case of M/s. SSA's Emerald Meadows (supra) decided by Hon'ble High Court of Karnataka is reproduced below :- 2. This appeal has been filed raising the following substantial questions of law: ( 1) Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 -VS- MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. 4. In our view, since the matter is covered by judgment of the Division Bench of this Court, we are of the opinion, no substantial question of law arises in this appeal for determination by this Court, the appeal is accordingly dismissed. 9. Bare perusal of the notice issued u/s 27I(1)(c) 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 specifyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assessing Officer. The Hon'ble Supreme Court in the case of Dilip N. Shroff vs. JCIT, 291 ITR 519(SC) has also noticed that where the Assessing Officer issues notice under section 274 of the Act in the standard proforma and the inappropriate words are not deleted, the same would postulate that the Assessing Officer was not sure as to whether he was to proceed on the basis that the assessee had concealed the particulars of his income or furnished inaccurate particulars of income. According to the Hon'ble : -Supreme Court, in such a situation, levy of penalty suffers from nonapplication of mind. In the background of the aforesaid legal position and, having regard to the manner in which the Assessing Officer has issued notice un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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