TMI Blog2020 (3) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. - ITA NO.1322/MUM/2019 - - - Dated:- 13-3-2020 - Shri C.N. Prasad, Hon'ble Judicial Member And Shri S. Rifaur Rahman, Hon'ble Accountant Member For the Assessee : Shri Bharat Kumar For the Department : Shri Bhera Ram ORDER PER C.N. PRASAD (JM) 1. This appeal is filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals) 53, Mumbai [hereinafter in short Ld.CIT(A) ] dated 05.12.2018 for the A.Y. 2013-14 in sustaining the penalty levied u/s. 271(1)(c) of the Act. 2. At the outset, Ld. Counsel for the assessee submitted that the initiation of penalty proceedings is bad in law as the Assessing Officer has not specified the limb on which the penalty was proposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cealment of income. Therefore, Ld. Counsel submits that the initiation of penalty proceedings itself is improper and not valid. Ld. Counsel for the assessee submitted that there is a complete non-application of mind by the Assessing Officer in initiating the penalty proceedings and therefore, levy of penalty is illegal, void, bad in law, initiated by non-application of mind and is without jurisdiction as the penalty notice issued by the Assessing Officer does not strike off the irrelevant portion thereon. Reliance was placed on the decision of Coordinate Bench in the case of M/s. Sia Lifestyles Pvt. Ltd., v. DCIT in ITA.No. 365/Mum/2018 dated 05.03.2019. 4. Ld. DR vehemently supported the orders of the Authorities below. 5. We have he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer himself is not sure of the charge and the assessee is not made aware as to which of the two limbs of section 271(1)(c) of the Act he has to respond. 7. Following the above decision, similar view has been taken by the Coordinate Bench in the case of Orbit Enterprises v. ITO [60 ITR(Trib.) 252]. In the case of DCIT v. Shri Dhaval D. Shah in ITA.No. 1337/Mum/2016 C.O.No.08/Mum/2018 dated 16.05.2018 the Coordinate Bench considered similar and identical issue and following the ratio laid down in the Dilip N. Shroff [210 CTR 228 (SC)] and the decision of the Hon ble Jurisdictional High Court in the case of CIT v. Samson Perinchery (supra) held that the penalty proceedings initiated by the Assessing Officer is bad in law. 8. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision Bench concluded that there was no proper record of satisfaction or proper application of mind in matter of initiation of penalty proceedings. 7. In the present case, as well if the notice dated 30/09/16 (at page 33) is perused, it is apparent that the relevant portions have not been struck off. This coupled with the fact adverted to in paragraph (5) of this order, leaves no ground for interference with the impugned order. The impugned order are quite consistent by the law laid down in the case of Samson Perinchery and New Era Sova Mine(supra) and therefore, warrant no interference. 8. The contention based upon MAK Data (P.) Ltd.(supra) also does not appeal to us in the peculiar facts of the present case. The notice in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for initiating the penalty proceedings. The Court took the view that the matter was covered by an earlier decision of a Division Bench of that Court and did not involve any substantial question of law. The matter, thereafter, went in an SLP before the Supreme Court, who did not find any merit in the petition. The Tribunal also noticed that the jurisdictional High Court in the case of 392 ITR 4 had also taken the same view. 3. The Appeals, accordingly, do not involve any substantial question of law and do not merit admission. The Appeals are, accordingly, dismissed. 10. In the case of Pr.CIT v. Goa Dourado Promotions Pvt. Ltd., in Tax Appeal No. 18 of 2019 dated 26.11.2019 the Hon'ble Bombay High Court at Goa held as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missed and is hereby dismissed. There shall be no order as to costs. 11. Thus, respectfully following the above said decisions, we hold that the notice was issued by the Assessing Officer U/s. 274 r.w.s 271(1)(c) of the Act is without specifying the charge for which the notice was issued as was non striking off of the inappropriate limb on account of non-application of mind and therefore the penalty proceedings initiated are bad in law. Thus, we direct the Assessing Officer to delete the penalty levied U/s. 271(1)(c) of the Act. 12. As we have held that the penalty be deleted on the preliminary point the other arguments raised by the Ld. Counsel for the assessee are not being dealt with as it becomes only academic. 13. In the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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