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2019 (7) TMI 228

..... s - HELD THAT:- Respectfully following the decision of the Hon'ble Supreme Court in the case of SSA’s Emerald Meadows [2016 (8) TMI 1145 - SC ORDER] and also the decision of Hon'ble High Court of Telangana & A.P. in the case of Smt. Baisetty Revathi [2017 (7) TMI 776 - ANDHRA PRADESH HIGH COURT] and also the decision of the coordinate bench of the tribunal in the case of Konchada Sreeram [2017 (11) TMI 1164 - ITAT VISAKHAPATNAM] , I hold that the notice issued u/sec. 274 read with section 271 is invalid and, therefore penalty order passed by the AO is hereby cancelled. - ITA No. 136/VIZ/2019 - 3-7-2019 - Shri V. Durga Rao, Hon ble Judicial Member For the Assessee : Shri S.V. Satyanarayana, Adv. For the Department : Smt. Su .....

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..... , dated 13/07/2017. 5. On the other hand, learned Departmental Representative has submitted that at the time of issuance of notice, the Assessing Officer is not sure about the penalty either for concealment of income or furnishing inaccurate particulars. Therefore, it is a premature notice and submitted that the notice issued by the Assessing Officer is a valid notice. 6. I have heard both the sides, perused the material available on record and orders of the authorities below. 7. The only issue for adjudication before the Bench is whether the notice issued by the Assessing Officer dated 07/03/2014 is valid or not. For the sake of convenience, the notice is extracted as under:- Whereas in the course of proceedings before me for the Assessmen .....

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..... 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 .....

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..... facts, Hon ble Supreme Court dismissed the SLP in the case of SSA s Emerald Meadows (2016) 73 Taxman.com 248(SC). Ld. DR s argument that the case is distinguishable on facts is not acceptable since the Ld. DR relied on the passing observation of the Hon ble High Court of AP. In the assessee s case, the issue is the defective notice u/s 271(1)(c) but not the penalty order. Unless the notice issued u/s 271(1)(c) is valid the penalty order cannot be held to be valid. The assessing officer did not strike off the irrelevant column in the notice and made known the assessee whether the penalty was initiated for the concealment of income or for furnishing the inaccurate particulars. In the assessment order also the AO simply recorded that the pena .....

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..... one, arising for consideration warranting admission of this appeal. 6.2. On the similar facts, the Coordinate Bench of ITAT, Visakhapatnam in ITA No.229/Viz/2015 in the case of Narayana Reddy Enterprises, following the order of the Coordinate Bench in the case of Smt. Makina Annapurna Vs. ITO, Visakhapatnam in ITA Nos.604 & 605/Vizag/2014 dated 2.2.2017 held that non-striking of the irrelevant column renders the notice issued u/s 271 as invalid. Respectfully, following the decision of the Hon ble AP High Court cited supra and the decision of this Tribunal cited (supra), we hold that the notice issued u/s 271 is invalid and consequent penalty imposed by the AO is cancelled. 9. Therefore, respectfully following the decision of the Hon' .....

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