TMI Blog2019 (11) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, respectfully following the same, we set aside the order passed by the CIT(A) and cancel the order of the Assessing Officer levying penalty - Decided in favour of assessee. - ITA No.252/CTK/2018 (Assessment Year :2011-2012) - - - Dated:- 13-9-2019 - SHRI CHANDRA MOHAN GARG, JM AND SHRI L.P. SAHU, AM Assessee by: Shri C. Parida, AR Revenue by: Shri Subhendu Dutta, DR ORDER Per L.P. Sahu, AM: This appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)-2, Bhubaneswar, dated 25.04.2018 for the assessment year 2011-2012. 2. The sole issue involved in this appeal is that the CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Assessing Officer u/s.271(1)(c) is, therefore, liable to be cancelled. 6. The Departmental Representative could not controvert the above submission of ld Authorised Representative of the assessee. 7. After hearing both the parties and perusing the orders of lower authorities and materials available on record of the Tribunal, we find that the facts in the present appeal are not in dispute and the Assessing Officer in the order passed u/s.271(1)(c) of the Act dated 20.06.2017 levied penalty of Rs. ₹ 1,27,406/-. 8. Hon'ble Apex Court vide judgment in case of M/s. SSA's Emerald Meadows, (2016) 73 taxmann.com 248(SC) dismissed the Special Leave Petition filed by the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has concealed particulars of income? 3. 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(l)(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 01 the derision of the Division Bench of this Court rendered In the case of COMMISSIONER or 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 ..... a Cotton Ginning Factory, 359 ITR 565 (Kar) observed that the levy of penalty has to be clear as to the limb under which it is being levied. As per Hon'ble High Court, where the Assessing Officer proposed to invoke first limb being concealment, then the notice has to be appropriately marked. The Hon'ble High Court held that the standard proforma of notice under section 274 of the Act without striking of the irrelevant clauses would lead to an inference of non-application of mind by the Assessing Officer. The Hon'ble Supreme Court in the case of Dilip N. Shroff vs. JCIT, 291 ITR 519(SC) has also noticed that where the Assessing Officer issues notice under section 274 of the Act in the standard proforma and the inappropriate wor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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