TMI Blog2019 (11) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... D.S. Sunder Singh, Hon ble Accountant Member For the Assessee : Shri G.V.N. Hari Advocate. For the Department : Smt. Suman Malik Sr.DR ORDER PER V. DURGA RAO, JUDICIAL MEMBER These appeals by the different assessees are directed against the separate orders of Commissioner of Income Tax (Appeals), Vijayawada, both dated 08/11/2018 for the Assessment Year 2006-07. Since facts and issues are common, clubbed and heard together and disposed of by way of this consolidated order. 2. There is a delay of 118 days in filing the appeals. The assessee has explained the delay by filing the affidavits along with medical certificate as under:- 1. The above appeal is instituted against the order dt.08.11.2018 of the learned Commissioner of Income Tax (Appeals), Vijayawada. The order was received on 11.12.2018. As such, the appeal against the said order ought to have been filed on or before 09.02.2019. However, the appeal was filed by the CPA holder (petitioner) on 07.06.2019 and as such there was a delay of 118 days in filing the appeal. 2. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars of income. 5. Learned counsel for the assessee has submitted that the notice issued by the Assessing Officer dated 07/01/2009, 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, ld.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 case of National Thermal Power Co. Ltd. Vs. CIT (229 ITR 383) has considered the issue and held that where the tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to be quashed in the light of the decision of the Hon'ble High Court of Telangana A.P. in the case of Smt. Baisetty Revathi (supra) and also the decision of the Hon'ble Supreme Court in the case of SSA‟s Emerald Meadows (supra). The coordinate bench of the Visakhapatnam tribunal in the case of Konchada Sreeram Vs. ITO in ITA No. 388/VIZ/2015, by order dated 06/10/2017 has considered the validity of notice by following the above referred to judgments and held that notice issued by the Assessing Officer is not a valid notice and accordingly quashed. For the sake of convenience, the relevant portion of the order is extracted as under:- 6. We have heard both the parties and perused the material placed on record. In this case, the assessee has not filed the return of income. The department has conducted the survey u/s 133A and completed the assessment u/s 143(3) on total income of ₹ 15,43,041/- and initiated penalty 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inguishable 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 penalty proceedings u/s 271(1)(c) are initiated separately. Neither in the assessment order nor in the penalty notice, the assessing officer has put the assessee on notice for which offence, the penalty u/s 271 was initiated. Therefore, the case is squarely covered by the decision of the Hon‟ble Jurisdictional High Court of cited (supra) wherein the Hon‟ble high court held as under: On principle, when penalty proceedings are sought to be initiated by the revenue under Section 271(1)(c) of the Act of 1961, the specific ground which forms th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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