TMI Blog2018 (2) TMI 1810X X X X Extracts X X X X X X X X Extracts X X X X ..... tainable.- Decided in favour of assessee - ITA No.121/CTK/2017 - - - Dated:- 28-2-2018 - SHRI N. S. SAINI, AM AND SHRI PAVAN KUMAR GADALE, JM For The Revenue : Shri D. K. Pradhan, DR For The Assessee : Shri D. K. Sheth, AR ORDER Per Shri N . S . Saini, AM : This is an appeal filed by the Revenue against the order of the CIT(A)-1, Bhubaneswar, dated 13.12.2016. 2. The sole issue involved in this appeal is that the CIT(A) erred in deleting the penalty made by the Assessing Officer u/s.271(1)(c)of the Act of ₹ 29,09,417/-. 3. At the outset, ld. Authorised Representative of the assessee filed before us copy of notice issued u/s.274/271(1)(c) of the Act dated 27.03.2015, copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed u/s.271(1)(c) of the Act dated 23.09.2015 levied penalty of ₹ 29,09,417/-. 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, omission if assessing officer to explicitly mention that penalty proceedings are being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p 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 non-application of mind. In the background of the aforesaid legal position and, having regard to the manner in which the Assessing Officer has issued notice under section 274 r.w.s. 271(1)(c) of the Act dated 27.03.2015 without strikin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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