TMI Blog2019 (7) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... e issued U/s 274 vis a vis reason given in the penalty order passed U/s 271(1)(c). For the reasons that now there is a settled legal position on the issue that the notice u/s 274 should be specific on imposing of penalty u/s 271(1) (c) i.e. concealed particulars of income or furnishing inaccurate particulars of income. See M/S SSA'S EMERALD MEADOWS [ 2016 (8) TMI 1145 - SC ORDER] - Decided in favour of assessee. - ITA No. 291/JP/2018 - - - Dated:- 5-7-2019 - Shri Ramesh C Sharma, AM And Shri Vijay Pal Rao, JM For the Assessee : Shri Rajnikant Bhatra And Shri S.R. Sharma (CAs) For the Revenue : Shri K.C. Meena (Addl.CIT) ORDER PER: R.C. SHARMA, A.M. This is an appeal filed by the assessee against the order of ld.CIT(A)-I, Jaipur dated 10/11/2017 for the A.Y. 2010-11 in the matter of imposition of penalty U/s 271(1)(c) of the Income Tax Act, 1961 (in short, the Act). Grounds taken by the assessee reads as under: 1. That the notice issued by the Assessing Officer U/s 274 r/w Sec. 271(1)(c) of the Income Tax Act, 1961 is wrong and bad in law inasmuch as it did not speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s invited at the last para of the assessment order wherein it was stated that penalty proceedings are being initiated separately U/s 271(1)(c) of the Act for concealing and filing inaccurate particulars of income. Our attention was invited to the order of the ld. CIT(A) wherein the addition made by disallowing claim of deduction U/s 80IB(10) of the Act was allowed by the ld. CIT(A) which has been confirmed by the ITAT as well as the Hon ble High court by dismissing the appeal of the department. The ld AR has further argued that the penalty is bad in law as notice issued U/s 274 r.w.s. 271(1)(c) of the Act is improper and invalid, in so far as in the assessment order, the A.O. held in last para of the order that penalty proceedings are being initiated separately u/s 271(1)(c) of the Act, 1961, for concealing filling inaccurate particulars of income . Our attention was also invited by the ld AR to the notice issued U/s 274 read with Section 271(1)(c) of the Act dated 28/02/2014 wherein the A.O. has recorded Have concealed particulars of your income or furnished inaccurate particulars of such income . 5. Further in the penalty notice u/s 274 read with section 271 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.O. clearly shows that the entire exercise of initiation of penalty proceedings has been done without application of mind. 8. As per the ld AR, since there is variation in the charge levied in the show cause notice vis a vis penalty order, the penalty so levied is not sustainable in view of the decision of the Hon ble Karnataka High court in the case of CIT Vs. M/s SSA s Emerald Meadows 2015 (11) TMI 1620 wherein at para 3, the Hon ble High Court has observed as under: Para 3. If the Tribunal has allowed the appeal filed by the assessee holding the notice issued by the Assessing Officer under section 274 read with Section 271 (1) (c) of the Income Tax Act, 1961 (for short the Act ) to be bad in law as it did not specify which limb of Section 271 (1) (c) of the Act, the penalty proceedings had been initiated i.e. whether for concealment of particulars of income or furnishing of inaccurate particulars of income. The Tribunal, while allowing the appeal of the assessee has relied on the decision of the Division Bench of this Court rendered in the case of COMMISSIONER OF INCOME TAX VS MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Muninga Reddy Vs. ACIT (2017) 396 ITR 398 and the Telengana Andhra Pradesh High Court in PCIT Vs. Baisetty Revethi (2017) 398 ITR 88 held the same view. In the above said judgments the Hon ble courts decided the law position on issue that the concealment of income and furnishing inaccurate particulars of income, two are different defaults and they cannot be intermixed. Therefore, the order of Ld. CIT (A) holding that it cannot be concluded that penalty notice did not specify the limb for initiation of penalty proceedings i.e. for concealment of income or for furnishing inaccurate particulars of income that itself cannot be reason for invalidating penalty proceedings is wrong and order of CIT (A) deserves to be set aside on this issue and penalty levied by AO deserves to be cancelled. 11. Reliance was also placed on the decision of the Third Member of the ITAT Amritsar Bench in the case of HPCL Mittal Energy Ltd. Vs Addl.CIT in support of the proposition that in case of variation in the charge for levy of penalty in the notice issued U/s 274 and the actual charge in the penalty order passed U/s 271(1)(c) of the Act, the penalty cannot be sustained. With regard to me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter the penalty levied by holding that the assessee has furnished inaccurate particulars of income and concealed the income. As there is a variation in the reasons given for initiation of penalty is the show cause notice issued U/s 274 vis a vis reason given in the penalty order passed U/s 271(1)(c) of the Act. For the reasons that now there is a settled legal position on the issue that the notice u/s 274 should be specific on imposing of penalty u/s 271(1) (c) of Income Tax Act, 1961 i.e. concealed particulars of income or furnishing inaccurate particulars of income. Reliance is placed on the decision of Hon'ble Karnataka High Court in the case of CIT Vs. M/s SSA s EMERALD MEADOWS (supra). The SLP filed by the I.T. department before the Hon'ble Supreme Court has been dismissed. Therefore, Hon'ble Supreme Court has approved the findings made by Hon'ble Karnataka High Court in the case of CIT Vs. SSA s Emerald Meadows and CIT Vs Manjunatha Cotton Ginnign Factory others (supra). 14. The same view has been upheld by the Hon ble Rajasthan High Court in the case of Shevetha Construction Co. Pvt. Ltd. (supra), ITAT Jaipur Bench in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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