TMI Blog2020 (2) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... 31/12/2009 is invalid and, therefore penalty order passed is hereby cancelled. - Decided in favour of assessee. - ITA No. 319/VIZ/2017 - - - Dated:- 17-2-2020 - Shri V. Durga Rao, Hon ble Judicial Member And Shri D.S. Sunder Singh, Hon ble Accountant Member For the Assessee : Shri G.V.N. Hari, Advocate. For the Department : Smt. U.Mini Chandran,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)-1, Visakhapatnam, dated 27/04/2017 for the Assessment Year 2004-05. 2. Facts of the case, in brief, are that the assessee is the proprietor of M/s. Sairam Parlour, filed his return of income by declaring total in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 an assessee‟. From the above, it is very clear that there is no fresh investigation on facts i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion before us is whether the notice issued by the Assessing Officer dated 31/12/2009 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 Assessment Year 2004-05, it appears to me that you:- (i) x x x x (ii) x x x x (iii) have concealed the particulars of your income or furnished inaccurate particulars of such income. 13. From the above, it is not clear whether Assessing Officer has initiated penalty proceedings for concealment of particulars of income or for furnished inaccurate particulars. Therefore, the notice issued by the Assessing Officer is a vague notice and is liable to be quashed in the light of the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, whether it was for the concealment of income or for furnishing of inaccurate particulars. As per the decision of the Hon‟ble Jurisdictional High Court cited, for starting the penalty proceedings, the condition precedent is that the assessing officer must be satisfied that a person has either concealed the particulars of his income or furnished inaccurate particulars of such income. The person who is accused of the conditions mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 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. 14. We find that the Hon'ble High Court of Telangana A.P. in the case of Smt. Baisetty Revathi (supra) has considered the very same issue and held that non-striking of the irrelevant portion of the notice issued u/sec. 274 is invalid. The very same judgment has been followed by the coordinate bench of this tribunal in the case of Konchada Sreeram (supra). Therefore, respectfully following above re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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