TMI Blog2019 (1) TMI 1409X X X X Extracts X X X X X X X X Extracts X X X X ..... RI D.S. SUNDER SINGH, HON BLE ACCOUNTANT MEMBER For The Assessee : Shri G.V.N. Hari Advocate For The Department : Shri V. Appala Raju Sr.DR ORDER PER V. DURGA RAO, JUDICIAL MEMBER This appeal filed by the Revenue and the Cross objection filed by the assessee are directed against the order of Commissioner of Income Tax (Appeals)-1, Visakhapatnam passed in ITA No. 1032/2014-15/DCIT, C-3(1), Vsp/2017-18, dated 22/03/2018 for the Assessment Year 2009-10. 2. The Revenue has raised the following grounds of appeal:- 1. The Order of the Ld. CIT(A)-1, Visakhapatnam is erroneous in law. 2. The Ld. CIT(A)- 1, Visakhapatnam erred in deleting the penalty of ₹ 92,31,310/- levied u/s 271(l)(c) of the Income Tax Act, 1961 ignoring and not appreciating the decisions of the Hon'ble High Court of Andhra Pradesh in the cases of CIT Vs Chandulal (152 ITR 238) and Srinivasa Pitty Sons Vs CIT (173 ITR 306) wherein it was held that mere failure to strike-off inappropriate portion in a notice will not render it invalid? 3. Ld. CIT(A) ought to have further considered that decision of Hon'ble AP High Court in the case of Baisetty Revat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come of ₹ 3.28 crores. Subsequently, the Assessing Officer issued a notice under section 271(1)(c) of the Act and called the assessee why penalty should not be levied. The assessee has submitted a detailed explanation before the Assessing Officer, however, the Assessing Officer has levied penalty under section 271(1)(c) of the Act. 4. On appeal before the ld. CIT(A), assessee has relied on the decision of Hon'ble Supreme Court in the case of CIT Vs. SSA s Emerald Meadows [(2016) 73 taxman.com 248 (SC)] and also the decision of Karnataka High Court in the case of CIT Vs. Manjunatha Cotton and Ginning Factory (359 ITR 565) and submitted that the Assessing Officer has to specific, on which limb penalty is imposed i.e. whether for the concealment of particulars of income or furnished inaccurate particulars of income. He further submitted that the Assessing Officer is not clear in issuing notice under section 271 r.w.s. 274, dated 28/02/2014, therefore, prayed that same has to be quashed. The ld. CIT(A) by considering the decision of the Hon'ble Jurisdictional High Court in the case of Smt. Baisetty Revathi (supra) held that notice issued by the Assessing Officer under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion therefore has to be spelt out in clear terms. Otherwise, an assessee would not have proper opportunity to put forth his defense. When the proceedings are penal in nature resulting in imposition of penalty ranging from 100% to 300% of the tax liability, the charge must be unequivocal and unambiguous. When the charge is either concealment of particulars of income or furnishing of inaccurate particulars thereof, the revenue must specify as to which one of the two is sought to be pressed into service and cannot be permitted to club both by interjecting an 'or' between the two, as in the present case. This ambiguity in the show-cause notice is further compounded presently by the confused finding of the Assessing Officer that he was satisfied that the assessee was guilty of both. We are therefore of the opinion that the order under appeal does not brook interference on any around. We find no question of law, much less a substantial one, arising for consideration warranting admission of this appeal. 6.2 On the similar facts, the Hon'ble ITAT in the case of Konchada Sreeram (ITA No. 388/VIzag/2015) following the decision of the Hon'ble Jurisdictional High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. We have heard both the parties and perused the material placed on record. In this case, the assessee has not filed the return of income. The department has conducted the survey u/s 133A and completed the assessment u/s 143(3) on total income of ₹ 15,43,041/- and initiated penalty proceedings u/s 271(1)(c). The fact is that long term capital gains for sale of the property have come to the notice of the assessing officer because of the efforts made by the department. Therefore, the AO has initiated the penalty proceedings u/s 271(1)(c) and issued show cause notice in the printed proforma of penalty. The AO has issued the penalty notice which reads as under : WHEREAS in the course of the proceeding before me for the Asst. Year 2007-08 it appears to me that you have concealed the particulars of your some or furnished inaccurate particulars of such income. 6.1. From the notice issued by the AO, it is observed that the assessing officer had issued the notice for concealment of income or for furnishing of inaccurate particulars. As per the notice, the assessing officer was not sure of which limb of the offence he sought the explanation from the assessee, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n notice for which offence, the penalty u/s 271 was initiated. Therefore, the case is squarely covered by the decision of the Hon ble Jurisdictional High Court of cited (supra) wherein the Hon ble high court held as under: On principle, when penalty proceedings are sought to be initiated by the revenue under Section 271(1)(c) of the Act of 1961, the specific ground which forms the foundation therefore has to be spelt out in clear terms Otherwise, on assesee would not have proper opportunity to put forth his defence. When the proceedings are penal in nature resulting in imposition of penalty ranging from 100% to 300% of the tax liability, the charge must be unequivocal and unambiguous. When the charge is either concealment of particulars of income or furnishing of inaccurate particulars thereof, the revenue must specify as to which one of the two is sought to be pressed into service and cannot be permitted to club both by interjecting an 'or' between the two, as in the present case. This ambiguity in the show-cause notice is further compounded presently by the confused finding of the Assessing Officer that he was satisfied that the assessee was guilty of both. We are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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