TMI Blog2021 (5) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... para 6.5 that: 'the amount added or disallowed in computing the total income of the assessee as a result thereof shall, for the purposes of clause (c) of this sub- section (1) of section 271, be deemed to represent the income in respect of which particulars have been concealed or inaccurate particulars have been furnished.' It is clear that where the charge is not properly set out in the notice u/s. 274 viz., both the limbs stand therein without striking off of the inapplicable limb, but the penalty has been, in fact, levied for one of the two, such a penalty order gets vitiated. We find from the notice u/s. 274 of the Act that the AO did not strike out one of the two limbs. Not only that, the penalty was also imposed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The AO observed that the assessee has transferred the entire proprietary concern to M/s. Prabhat Diary Pvt. Ltd. and did not disclose the capital gains arising therefrom. Thus, invoking section 50B of the Act, he made an addition of ₹ 91,43,141/-. Subsequently, a penalty of ₹ 31,42,000/- was imposed on this score by the AO u/s. 271(1)(c) after issuing notice u/s. 274 of the Act. The ld. CIT(A), after elaborately discussing the issue, upheld the penalty. Aggrieved thereby, the assessee has come up in appeal before the Tribunal. 3. We have heard the rival submissions through Virtual Court and scanned through the relevant material on record. A copy of the notice issued u/s. 274 of the Act has been placed in the appeal folder, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) 124 taxmann.com 249 (SC). In view of the overwhelming position, it is clear that where the charge is not properly set out in the notice u/s. 274 viz., both the limbs stand therein without striking off of the inapplicable limb, but the penalty has been, in fact, levied for one of the two, such a penalty order gets vitiated. 4. Turning to the facts of extant case, we find from the notice u/s. 274 of the Act that the AO did not strike out one of the two limbs. Not only that, the penalty was also imposed in the same way by referring to both the limbs in the penalty order. As against that, the penalty was leviable only on one limb, namely, furnishing of inaccurate particulars of income. In such a situation, the penalty order gets vitiated. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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