TMI Blog2019 (4) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... anshu Singhal, CA For the Respondent : Shri Amit Jain, Sr. DR ORDER PER R.K. PANDA, AM: 1. The above two appeals filed by the respective assessees are directed against the separate orders dated 13.06.2018 of the CIT(A)-28, New Delhi relating to A.Y. 2003-04. Since identical grounds have been taken by the respective asessees in their appeals, therefore, these were heard together and are being disposed of by this common order for the sake of convenience. 2. In both the appeals the respective assesses have challenged the order of the CIT(A) in confirming the penalty levied by the Assessing Officer u/s 271 (1) (c) of the IT Act. ITA No.5655/Del/2018 (A. Y. 2003-04) 3. The facts of the case, in brief, are that the asessee is a company and field its return of income on 30.10.2003 declaring nil income. The case of the assessee was reopened by issue of notice u/s. 148. The AO passed the order u/s. 254/143 (3) determining the total income at ₹ 1025000/- wherein he made addition of ₹ 10 lakhs u/s 68 of the IT Act on account of share capital receipt from different persons and an amount of ₹ 25,000/- being commission paid for arranging the acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice issues u/s 274 r.w.s. 271 (1) (c) of the IT Act dated 23.02.2016 and another notice on 08.03.2016 and submitted that the Assessing Officer has not deleted the inappropriate words in the said notice. Therefore, it is not clear as to under which limb of provisions of section 274 r.w.s. 271 (1) (c ) of the IT Act, the penalty proceedings are initiated. Referring to series of decisions she submitted that where the Assessing Officer has not struck off the inappropriate words in the notice, the penalty levied is not sustainable. She relied on the following decisions:- 1. H. N. Ice and Storage Pvt. Ltd. Vs. DCIT, Circle 12 (1), New Delhi ITA No.926/Del/2018, ITAT Delhi. 2. Sanjay Mittra Vs. DCIT, ITA No.5206/Del/2016, ITAT Delhi 3. YKM Holdings Pvt. Ltd. Vs. ITO, Ward 18 (14), ITA No.2174/Del/2016, ITAT Delhi. 4. Neelam Rani Kanwar Pal Singh Verma Vs. ITO, Ward 1 (4), ITA No.5500 5501/Del/2018, ITAT Delhi. 5. Sahiwal Investments Trading Co. Vs. ITO Ward 22 (2) ITA No.4913/Del/2015, ITAT Delhi. 6. Vidyannath Urban Co-operative Bank Ltd. Vs. ACIT, ITA no.2078 2079/Pun/2014, ITAT Pune 7. New Era Infrastructure Pvt. Ltd. Vs. CIT (A)-6, New Delhi ITA No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.118/Agra/2015 dated 19.12.2017. ii. Dr. Sarita Milind Davare, 184.TTJ 9. iii. Shri K. Prakash Shetty, ITA No.265 to 267/2014 dated 05.06.2014. 10. I have considered the rival arguments made by both the sides and perused the orders of the authorities below. I find from the notice issued u/s 274 r.w.s. 271 (1) (c) of the IT Act that the inappropriate words in the said notice have not been struck of. I find the coordinate bench of the Tribunal in the case of Sanjay Mitra Vs. DCIT has decided an identical issue and the penalty so levied by the Assessing officer and upheld by the CIT(A) has been deleted. The relevant observation of the Tribunal from para 15 onwards read as under :- 15. We have considered the rival arguments made by both the sides and perused the material available on record. We have also considered the various decisions cited before us. We find the only issues to be decided in the grounds of appeal is regarding the sustainable of penalty levied u/s 271 (1) when the inappropriate words in the notice issued u/s 274 r.w.s. 271 have not been struck off. A perusal of the notice issued u/s 274 r.w.s. 271 dated 30.03.2004 shows that the in appropriate w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed. Thus, Additional Ground No. (ii) of the assessee's appeal is allowed. Since the inception of the notice issued u/s 271(1)(c) has become null and void, there is no need to comment on merit of the case. The Penalty u/s 271(1)(c) of the Act is quashed. 16. Since in the instant case also the inappropriate words in the penalty notice has not been struck off and the notice does not specify as to under which limb of the provisions, the penalty u/s 271(1)(c) has been initiated, therefore, we are of the considered opinion that the penalty levied u/s 271(1)(c) is not sustainable and has to be deleted. Although the Id. DR has relied on various decisions to the proposition that mere non-striking off of the inappropriate words will not invalidate the penalty proceedings, however, all these decisions are of nonjurisdictional High Court decisions. The decision of the Delhi Bench of the Tribunal relied on by the Id. DR is prior to the decision of the Hon ble Karnataka High Court in the case of SSA S Emerald Meadows (supra) where the SLP filed by the Revenue has been dismissed. Since there is no decision of the Jurisdictional High Court on this issue, therefore, we find ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
