TMI Blog2019 (5) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... nd raised by the assessee has to be adjudicated - Additional ground raised by the assessee is admitted. Penalty u/s 271(1)(c) - defective notice - Whether the notice issued by the AO is valid or not? - HLD THAT:- From notice it is not clear whether Assessing Officer has initiated penalty proceedings for concealment of particulars of income or for furnished inaccurate particulars. Therefore, the notice issued by the Assessing Officer is a vague notice and is liable to be quashed in the light of the decision of the Hon'ble Jurisdictional High Court in the case of Smt. Baisetty Revathi [ 2017 (7) TMI 776 - ANDHRA PRADESH HIGH COURT] and also case of SSA s Emerald Meadows [ 2016 (8) TMI 1145 - SUPREME COURT]. Also see KONCHADA SREERAM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. 3. On appeal before the ld. CIT(A) also, the assessee has shown the same attitude as has been shown before the Assessing Officer, therefore, ld. CIT(A) confirmed the penalty order passed by the Assessing Officer. 4. Aggrieved, the assessee has raised the following additional ground before the Tribunal. Whether on the facts and in the circumstances of the case, the order dt 26-09-2013 levying penalty u/s 271(1)(c) is liable to be cancelled in as much as the notice dt.30-03-2013 initiating the penalty proceedings did not specify clearly as to whether the penalty proceedings were initiated for concealment of particulars of income or for furnishing inaccurate particulars of income. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the additional ground raised by the assessee is admitted. 9. Now coming to the validity of the notice issued by the Assessing Officer dated 30/03/2013. In this context, learned counsel for the assessee has submitted that the notice issued by the Assessing Officer is not clear whether notice issued under section 271(1)(c) is for concealment of income or furnished inaccurate particulars. Therefore, the notice issued by the Assessing Officer is not a valid notice in the light of the latest judgment of the Hon'ble Supreme Court in the case of CIT Vs. SSA s Emerald Meadows [(2016) 73 taxman.com 248 (SC)] and also the Hon'ble Jurisdictional High Court of Telangana A.P. in I.T.T.A. No. 684/2016 in PCIT Vs. Smt. Baisetty R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of SSA s Emerald Meadows (supra). The coordinate bench of the Visakhapatnam tribunal in the case of Konchada Sreeram Vs. ITO in ITA No. 388/VIZ/2015, by order dated 06/10/2017 has considered the validity of notice by following the above referred to judgments and held that notice issued by the Assessing Officer is not a valid notice and accordingly quashed. For the sake of convenience, the relevant portion of the order is extracted as under:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings and should have the full opportunity to meet the case of the revenue so as to show that the conditions stipulated in Section 271(1)(c) do not exist and that he is not liable to pay the penalty. The Hon ble High Court of Karnataka in the case law cited held that the practice of the revenue in sending the printed form where all the grounds mentioned in 271(1)(c) are mentioned would not satisfy the requirement of law when the consequence of the assessee not rebutting the initial presumption is serious in nature and has to pay the penalty ranging from 100% to 300% of the tax liability. As the provisions of section 271(1)(c) have to be strictly construed, the Hon ble High court of Karnataka mandated that the notice issued should be set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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