TMI Blog2019 (4) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned, he can modify the penalty order by enhancing or reducing the penalty. However, where the Act provides for two different rates under different two provisions of law in our considered view, the assessee ought to have been given an opportunity of hearing on this aspect. However, in the present case at the very inception notice initiating penalty is not in accordance with mandates of law. Moreover, it is settled position of law that such defect is not curable u/s 292BB of the Act. Therefore, we hereby quash the penalty order. - Decided in favour of assessee. - ITA No.636/Ind/2017 - - - Dated:- 28-3-2019 - SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER For The Appellant : Shri Anil Kamal Garg And Aprit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the material fact that the appellant had fully admitted undisclosed income and also specified the manner, in a very unequivocal and unambiguous way, in which such undisclosed income has been derived during the course of search, in a statement of his father namely Shri Mohanlal Chugh recorded under s. 132(4) of the Act. 2. Briefly stated facts are that a search and seizure operation u/s 132 was carried out on the business as well as residential premises of the Chugh Group of Indore including the assessee. Thereafter, a notice u/s 153A was issued, in response thereto, the assessee filed his return of income on 22.12.2014 including additional income of ₹ 35,00,000/- declared during the search. The assessing officer observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cases of: S. No. Citation 1 Sandeep Chandak Ors. vs. ACIT (2017) 55 ITR 209 (Luck. Trib.) 2 ShriAnuj Mathur vs. DCIT 2018 (6) TMI 1311 ITAT Jaipur) 3 Shri Ravi Mathur vs. DCIT 2018 (6) TMI 1128 ITAT Jaipur) 4 Shri Suresh Chand Mittal vs. DCIT 2018 (7) TMI 220 (ITAT Jaipur) 5. DCIT vs. Manish Agarwala 2018 (2) TMI 972 (ITAT Kol.) 6 DCIT vs. Subhas Chandra Agarwala 2018 (5) TMI 1602 (ITAT Kal.) 7 Pankaj Jalan vs. DCIT 2018 (5) TM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced as under: 7. A bare reading of the above notice suggests that the notice has been issued in a casual fashion. The Assessing officer has not applied his mind and no specific charge is mentioned for which the assessee was required to be show caused. In absence of the requisite contents of specific charge the initiation of proceedings cannot be sustained being bad in law. Admittedly, Ld. CIT(A) reduced the penalty by applying the provisions of section 271AAB(1)(a). There is no ambiguity under the law so far powers of Ld. CIT(A) is concerned, he can modify the penalty order by enhancing or reducing the penalty. However, where the Act provides for two different rates under different two provisions of law in our considered view, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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