TMI Blog2021 (3) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Per Amit Shukla, JM These three appeals filed by the assessee are directed against the order dated 29.06.2017 of the Commissioner of Income Tax (Appeals)-24, New Delhi relating to Assessment Year 2010-11, 2011-12 2012-13. 2. Before us, at the outset the Learned AR submitted that though the appeals of the assessee are for three years but the issue and amount involved in all the three years are identical except for the year involved and therefore his submissions are also common. The Learned DR did not controvert the aforesaid submissions of Learned AR. We therefore for the sake of convenience proceed to dispose of all the three appeals by a consolidated order but however refer to the facts in ITA No. 5090/Del/2017 for A.Y. 2010-11. 3. The relevant facts as culled from the material on records are as under: 4. AO has noted that a search and seizure operation under section 132 was conducted at business premises of the companies of Rockland Group as well as at the residential premises of directors of the companies on 06.09.2011. Consequently, notice under section 153C of the Act was issued to the assessee on 05.08.2013 and in response to which assessee filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erald has held that notice issued for assuming jurisdiction under section 271(1)(c) of the Act should be unambiguous. He further submitted that relying on the aforesaid decision of Hon'ble Apex Court, the Coordinate Bench of Tribunal in assessee's own case, for A.Y. 2008-09 has deleted the levy of penalty. He pointed to the copy of the decision placed in the paper book. He therefore submitted that since the facts of the year under consideration are identical to that of A.Y. 2008-09, therefore following the decision of Tribunal in assessee's own case for A.Y. 2008-09 the penalty levied by AO be deleted. 7. The Learned DR on the other hand supported the orders of lower authorities and further submitted that since the quantum addition has been upheld in all the three years, the AO was fully justified in levying the penalty. 8. We have heard the rival submissions and perused the material on record. The issue in the present ground is with respect to levy of penalty under section 271(1)(c) of the Act. We find that the identical issue arose in the case of the assessee in A.Y. 2008-09 and the Co-ordinate Bench of Tribunal in ITA No. 5088/Del/2017 for A.Y. 2008-09 vide ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,26,000/- (iii) Commission paid to secure unexplained cash credits 1,79,569 After giving effect to the order of CIT(A), the Assessing Officer after providing the assessee an opportunity to show cause as to why penalty u/s. 271(1)(c) should not be levied for concealment of income, and considering the same, rejected the submissions of the assessee and proceeded to levy penalty at the rate of 100% of the tax sought to be evaded on the amounts confirmed in first appeal. ............. 7. We have heard both the parties and perused all the relevant materials available on record. First of all, in the notice issued u/s. 274 r.w.s 271(1)(c) of the Income Tax Act, 1961, there was no specific charges as relates to concealment of income or furnishing of inaccurate particulars of income. From the notice dated 20/06/2014 produced by the Ld. AR during the hearing, it can be seen that the Assessing Officer was not sure under which limb of provisions of Section 271 of the Income Tax Act, 1961, the assessee is liable for penalty. Besides that the Assessment Order also did not specify the char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and void, there is no need to comment on merit of the case. The Penalty u/s. 271(1)(c) of the Act is quashed. Since in the instant case also the inappropriate words in the penalty notice has not been struck off and the notice does not specify as to under which limb of the provisions, the penalty u/s. 271(1)(c) has been initiated, therefore, we are of the considered opinion that the penalty levied u/s. 271(1)(c) is not sustainable and has to be deleted. Although the Ld. DR submitted that mere non-striking off of the inappropriate words will not invalidate the penalty proceedings, however, the decision of the Hon'ble Karnataka High Court in the case of SSA'S Emerald Meadows (supra) where the SLP filed by the Revenue has been dismissed is directly on the issue contested herein by the Assessee. Further, when the notice is not mentioning the concealment or the furnishing of inaccurate particulars, the ratio laid down by the Hon'ble High Court in case of M/s. Sahara India Life Insurance Company Ltd. (supra) will be applicable in the present case. The Hon'ble Delhi High Court held as under: 21. The Respondent had challenged the upholding of the penalty impose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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