TMI Blog2019 (1) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice issued under section 274 read with section 271(1)(c) doesn’t specify the exact charge against the assessee as to whether it relates to concealing the particulars of income or furnishing inaccurate particulars of income. Respectfully following the decisions referred supra, the factum of nonstriking off of the irrelevant clause in the notice issued under section 274 read with section 271(1)(c) is hereby held as reflective of non-application of mind by the AO, the penalty imposed U/s 271(1)(c) is deleted. - decided in favour of assessee. - ITA. No. 312/JP/2018 - - - Dated:- 7-8-2018 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri P.C. Parwal (C.A.) For the Revenue : Shri J.C. Kulhari (DC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lars of income and in the notice U/s 274 r.w.s. 271(1)(c), penalty proceedings have been initiated for concealment of income or furnishing of inaccurate particulars of income. Thus, in the absence of any specific charge against the assessee in the penalty notice, consequent penalty imposed by the AO is illegal and bad in law. In support, reliance was placed on the decision of Hon ble Supreme Court in case of CIT vs. SSA s Emerald Meadows (2016) 242 Taxman 180 and Hon ble Karnataka High Court in case of CIT vs. M/s Manjunatha Cotton ginning Factory Ors. 359 ITR 565. It was further submitted that a similar view issue has been taken by the Coordinate Bench of this Tribunal in case of Shri Chandmal Kumawat vs. ITO (ITA No. 441/JP/2017 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, we refer to the assessment order where, after discussing the issue relating to computation of capital gains, the AO held that by showing less capital gains, the assessee has furnished inaccurate particulars of income and penalty proceedings are being initiated separately and thereafter, towards the end of the assessment order, the AO states that penalty proceedings u/s 271(1)(c) read with section 274 have been initiated separately for concealment of income/furnishing of inaccurate particulars of income. This thus shows that the AO himself is unsure about the charge against the assessee during the course of assessment proceedings. Considering the observations of the AO in the assessment order alongside his action of non-striking of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been followed in case of SSA Emerald Meadows (supra) and the SLP against the latter decision has since been dismissed by the Hon ble Supreme Court. Further, we note that the Hon ble Bombay High Court in case of Shri Samson Perinchery (in ITA No. 1154 and others dated 5.01.2017) and Karnataka High Court in its latest decision in case of S. Chandrashekhar (Supra) has reaffirmed the said legal proposition. 18. In light of above legal authorities where the factum of non-striking off of the irrelevant clause in the notice has been held as reflective of non-application of mind by the AO and in light of facts and circumstances of the present case and the above discussions, the penalty imposed under section 271(1)(c) is liable to be delet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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