TMI Blog2019 (8) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... ve referred to judicial precedents, we hold that the notice issued u/s 274 read with section 271, dated 18/03/2016 is invalid and, therefore penalty order passed by the Assessing Officer, dated 28/09/2016 is hereby cancelled. - ITA No. 434/VIZ/2018 - - - Dated:- 14-8-2019 - Shri V. Durga Rao, Hon ble Judicial Member And Shri D.S. Sunder Singh, Hon ble Accountant Member For the Assessee : Shri C.V.S. Murthy FCA. For the Department : Shri D.V. Subba Rao Sr.DR ORDER PER V. DURGA RAO, JUDICIAL MEMBER This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-9, Hyderabad, dated 25/06/2018 for the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Ld.AR has submitted that the notice issued by the Assessing Officer dated 18/03/2016, is a vague notice and therefore, the additional ground raised before the tribunal is a legal issue, which goes to the root of the matter and therefore the same may be admitted. 6. On the other hand, learned Departmental Representative has raised objection for admission of additional legal ground raised by the assessee. 7. We have heard both the sides, perused the material available on record and orders of the authorities below. 8. We find that the issue raised by the assessee is a legal issue and all the facts are available on record. In this context, the Hon'ble Supreme Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2017. 10. 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. 11. We have heard both the sides, perused the material available on record and orders of the authorities below. 12 The only issue for adjudication before us is whether the notice issued by the Assessing Officer dated 18/03/2016 is valid or not. For the sake of convenience, the notice is extracted as under:- Whereas in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty proceedings u/s 271(1)(c). The fact is that long term capital gains for sale of the property have come to the notice of the assessing 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed should be set out the grounds which the assessee has to meet specifically, otherwise the principles of natural justice would be offended as the show cause notice would be vague. On the similar 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d presently by the confused finding of the Assessing Officer that he was satisfied that the assessee was guilty of both. We are therefore of the opinion that the order under appeal does not brook interference on any ground. We find no question of law, much less a substantial 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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