TMI Blog2018 (9) TMI 1309X X X X Extracts X X X X X X X X Extracts X X X X ..... Y 2010-11 wherein the Ld. CIT(A) confirmed the penalty imposed by the AO u/s. 271(1)(c) of the Income-tax Act, 1961 (hereinafter referred to as the Act ). 2. At the outset itself, the Ld. DR brought to our notice that there is a delay of 1178 days in filing assessee s appeal and, therefore, the appeal should be dismissed for the delay in filing the appeal before this Tribunal. The Ld. Counsel for the assessee drew our attention to the condonation petition wherein the assessee has stated that the penalty order u/s. 271(1)(c) of the Act wherein the AO imposed penalty of ₹ 1,04,125/- was challenged by the assessee before the Ld. CIT(A), who was pleased to dismiss the same on 19.02.2014. However, the said order was infact received by the assessee only on 29.03.2014. The Ld. AR submitted that last date for filing the appeal before the Tribunal was on 28.05.2014, however, since the assessee filed this appeal only on 18.01.2018 there is a delay of around 1330 days in filing the appeal. The Ld. AR brought to our notice the back-ground for causing the delay and submitted that after receipt of the order of Ld. CIT(A) dated 19.02.2014 on 29.08.2014 the assessee handed over the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be kept in mind while considering the application for condonation of delay. The Hon ble Apex Court has emphasized that substantial justice should prevail over technical consideration. The Hon ble Apex Court has also observed that a litigant does not stand to benefit by lodging the appeal late. The Hon ble Apex court has also observed that every day s delay must be explained does not mean that a pedantic approach should be taken. The doctrine must be applied in a rational, common sense and pragmatic manner. In the case of Vedabai Alias Vaijayantabai Baburao Patil Vs. Shantaram Baburao Patil Ors. 253 ITR 798(SC), the Hon ble Supreme Court in the matter of condonation of delay observed that substantial justice is of prime importance. Similar were the ruling of the Hon ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy 1998 (7) SCC 123 (SC) and Shankarrao Vs. Chandrasenkunwar (1987) suppl. SCC 338 (SC). In the light of the aforesaid judicial precedent and taking into consideration the fact that because of the wrong advice given by the Ld. AR Shri Tiwari caused the assessee in not preferring an appeal before this Tribunal. Therefore, the assessee cannot be faulted f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Hon ble Bombay High Court in the case of CIT vs Shri Samson Perinchery in ITA No.1154 of 2014 dated 05.01.2017 wherein the Hon ble Bombay High Court following the decision of the Hon ble Karnataka High Court in the case of CIT vs Manjunatha Cotton and Ginning factory (supra) came to the conclusion that imposition of penalty on defective show cause notice without specifying the charge against the assessee cannot be sustained. Our attention was also drawn to the decision of ITAT in the case of Suvaprasanna Bhattacharya vs. ACIT in ITA No.1303/Kol/2010 dated 06.11.2015 wherein identical proposition has been followed by the Tribunal. Our attention was also drawn to a recent judgment of Hon ble Calcutta High Court in the case of Pr. CIT- 19 Vs. Dr. Murari Mohan Koley, ITAT No. 306 of 2017, GA No.2968 of 2017 dated 18.07.2018 wherein also the Hon ble High Court has upheld the above proposition of law and dismissed the appeal of the revenue. 6. Ld. DR vehemently opposed the submission of the Ld. AR and has cited various case laws to oppose the case laws suggested by the Ld. AR. We note that all the case laws cited before us by the Ld. DR has been dealt with elaborately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the proposal to levy penalty in order to enable him to explain as to why it should not be done. Mere mistake in the language used or mere non-striking of the inaccurate portion cannot by itself invalidate the notice. The ITAT Mumbai Bench in the case of Dhanraj Mills Pvt.Ltd. (supra) followed the decision rendered by the Jurisdictional Hon ble Bombay High court in the case of Kaushalya (supra) and chose not to follow decision of Hon ble Karnataka High Court in the case of Manjunatha Cotton Ginning Factory (supra). Reliance was also placed by the ITAT Mumbai in this decision on the decision of Hon ble Patna High court in the case of CIT v. Mithila Motor's (P.) Ltd. [1984] 149 ITR 751 (Patna) wherein it was held that under section 274 of the Income-tax Act, 1961, all that is required is that the assessee should be given an opportunity to show cause. No statutory notice has been prescribed in this behalf. Hence, it is sufficient if the assessee was aware of the charges he had to meet and was given an opportunity of being heard. A mistake in the notice would not invalidate penalty proceedings. 10. In the case of Earthmoving Equipment Service Corporation (supra), the ITAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is valid and legal? 2. Whether the proceedings initiated by the Assessing Authority was legal and valid? The Hon ble Karnataka High Court held in the negative and against the revenue on both the questions. Therefore the decision rendered by the ITAT Mumbai in the case of Earthmoving Equipment Service Corporation (supra) is of no assistance to the plea of the revenue before us. 11. In the case of M/S.Maharaj Garage Co. Vs. CIT dated 22.8.2017 referred to in the written note given by the learned DR, which is an unreported decision and a copy of the same was not furnished, the same proposition as was laid down by the Hon ble Bombay High Court in the case of Smt.Kaushalya (supra) appears to have been reiterated, as is evident from the extracts furnished in the written note furnished by the learned DR before us. 12. In the case of Trishul Enterprises ITA No.384 385/Mum/2014, the Mumbai Bench of ITAT followed the decision of the Hon ble Bombay High Court in the case of Smt.Kaushalya (supra). 13. In the case of Mahesh M. Gandhi (supra) the Mumbai ITAT the ITAT held that the decision of the Hon ble Karnataka High Court in the case Manjunatha Cotton Ginning (supra) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Manjunatha Cotton Ginning (supra). 15. We have already observed that the show cause notice issued in the present case u/s 274 of the Act does not specify the charge against the assessee as to whether it is for concealing particulars of income or furnishing inaccurate particulars of income. The show cause notice u/s 274 of the Act does not strike out the inappropriate words. In these circumstances, we are of the view that imposition of penalty cannot be sustained. The plea of the ld. Counsel for the assessee which is based on the decisions referred to in the earlier part of this order has to be accepted. We therefore hold that imposition of penalty in the present case cannot be sustained and the same is directed to be cancelled. 7. Respectfully following the aforesaid order of the Hon ble Calcutta High Court in the case of Dr. Murari Mohan Koley, supra and coordinate bench of this Tribunal, we, therefore, hold that penalty imposed by the AO and confirmed by the Ld. CIT(A) u/s. 271(1)(c) of the Act in the present case is not sustainable and hence, we delete the same. The appeal of assessee is allowed. 8. In the result, appeal of assessee is allowed. Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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