TMI Blog2019 (6) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commissioner of Income Tax (Appeals), Guwahati-1, Guwahati dated 27.08.2018 for AY 2012-13 and 2013- 14 respectively in confirming the penalty imposed by the AO u/s. 271(1)(c) of the Incometax Act, 1961 (hereinafter referred to as the Act ). Since grounds are common and facts are identical, we dispose of both these appeals by the consolidated order for the sake of convenience by taking the appeal for AY 2012-13 as the lead case and the result of which will be applied for other year also. 2. At the outset itself, the learned AR drew our attention to the defective notice dated 29.04.2016 wherein the show cause notice reveals that the AO has not stricken down either of the limbs that is for which specific fault the assessee is being proceeded against for levy of penalty u/s 271(1)(c) of the Act i.e. to have concealed particulars of income or having furnished inaccurate particulars of income. Assailing the decision of the ld. CIT(A) in confirming penalty, the ld. AR cited several decisions including the decision of the Hon ble Calcutta High Court Hon ble Supreme Court (which we will discuss infra while adjudicating the issue) pleaded that the penalty be cancel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tton and Ginning factory (supra) came to the conclusion that imposition of penalty on defective show cause notice without specifying the charge against the assessee cannot be sustained. Our attention was also drawn to the decision of ITAT in the case of Suvaprasanna Bhattacharya vs ACIT in ITA No.1303/Kol/2010 dated 06.11.2015 wherein identical proposition has been followed by the Tribunal. Our attention was also drawn to a recent judgment of Hon ble Calcutta High Court in the case of Pr. CIT-19 Vs. Dr. Murari Mohan Koley, ITAT No. 306 of 2017, GA No.2968 of 2017 dated 18.07.2018 wherein also the Hon ble High Court has upheld the above proposition of law and dismissed the appeal of the revenue. 5. We note that the Coordinate Bench of this Tribunal in the case of Jeetmal Choraria Vs. ACIT, ITA No. 956/Kol/2016 for AY 2010-11 dated 01.12.2017, wherein the Tribunal has taken note of all the case laws of ld. AR and ld. DR and adjudicated the issue as under: 7. The learned DR submitted that the Hon ble Calcutta High Court in the case of Dr.Syamal Baran Mondal Vs. CIT (2011) 244 CTR 631 (Cal) has taken a view that Sec.271 does not mandate that the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision rendered by the Jurisdictional Hon ble Bombay High court in the case of Kaushalya (supra) and chose not to follow decision of Hon ble Karnataka High Court in the case of Manjunatha Cotton Ginning Factory (supra). Reliance was also placed by the ITAT Mumbai in this decision on the decision of Hon ble Patna High court in the case of CIT v. Mithila Motor 's (P.) Ltd. [1984] 149 ITR 751 (Patna) wherein it was held that under section 274 of the Income-tax Act, 1961, all that is required is that the assessee should be given an opportunity to show cause. No statutory notice has been prescribed in this behalf. Hence, it is sufficient if the assessee was aware of the charges he had to meet and was given an opportunity of being heard. A mistake in the notice would not invalidate penalty proceedings. 10. In the case of Earthmoving Equipment Service Corporation (supra), the ITAT Mumbai did not follow the decision rendered in the case of Manjunatha Cotton Ginning Factory (supra) for the reason that penalty in that case was deleted for so many reasons and not solely on the basis of defect in show cause notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions. Therefore the decision rendered by the ITAT Mumbai in the case of Earthmoving Equipment Service Corporation (supra) is of no assistance to the plea of the revenue before us. 11. In the case of M/S.Maharaj Garage Co. Vs. CIT dated 22.8.2017 referred to in the written note given by the learned DR, which is an unreported decision and a copy of the same was not furnished, the same proposition as was laid down by the Hon ble Bombay High Court in the case of Smt.Kaushalya (supra) appears to have been reiterated, as is evident from the extracts furnished in the written note furnished by the learned DR before us. 12. In the case of Trishul Enterprises ITA No.384 385/Mum/2014, the Mumbai Bench of ITAT followed the decision of the Hon ble Bombay High Court in the case of Smt.Kaushalya (supra). 13. In the case of Mahesh M. Gandhi (supra) the Mumbai ITAT the ITAT held that the decision of the Hon ble Karnataka High Court in the case Manjunatha Cotton Ginning (supra) will not be applicable to the facts of that case because the AO in the assessment order while initiating penalty proceedings has held that the Assessee had c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case u/s 274 of the Act does not specify the charge against the assessee as to whether it is for concealing particulars of income or furnishing inaccurate particulars of income. The show cause notice u/s 274 of the Act does not strike out the inappropriate words. In these circumstances, we are of the view that imposition of penalty cannot be sustained. The plea of the ld. Counsel for the assessee which is based on the decisions referred to in the earlier part of this order has to be accepted. We therefore hold that imposition of penalty in the present case cannot be sustained and the same is directed to be cancelled. 6. In the light of the aforesaid decisions, we are inclined to respectfully follow the order of the Hon ble Calcutta High Court in the case of Dr. Murari Mohan Koley, (supra) even though the Ld. DR vehemently contended that there is an order of the Hon ble High Court of Madras in favour of the Revenue in Sundaram Finance Ltd. cited supra and since we have already taken consistent view as well as the Hon ble Calcutta High Court s order in PCIT Vs. Vijay Kumar Agarwal dated 22.04.2019 wherein also the Hon ble High court was pleased to uphold the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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