TMI Blog2021 (3) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... tton Ginning Factor [ 2013 (7) TMI 620 - KARNATAKA HIGH COURT] - we direct the AO delete the penalty in all the captioned appeals for the years under consideration - Decided in favour of assessee. - ITA Nos. 238 to 240/CTK/2020, ITA Nos. 241 to 243/CTK/2020, ITA Nos.244 to 247/CTK/2020, ITA Nos.248 to 251/CTK/2020 - - - Dated:- 5-3-2021 - SHRI C.M. GARG, JM AND SHRI L.P. SAHU, AM For the Assessee : Shri Mohit Sheth, AR For the Revenue : Shri S.C.Mohanty, DR ORDER Per Bench : These fourteen appeals filed by the four different assessees are against the order of CIT(A)-2, Bhubaneswar, all dated 08.09.2020 for the assessment years 2010-2011 to 2012-2013 2015-2016. 2. The sole issue involved in all the appeals is that the CIT(A) erred in confirming the action of the Assessing Officer in levying penalty u/s.271(1)(c) of the Act for the assessment years under consideration. 3. At the outset, ld. AR of the assessee drew our attention to the notice issued by the AO u/s.271(1)(c) of the Act, all dated 26.12.2017 for A.Y.2010-2011 to 2012-2013 2015-2016, copy of which are placed on record and pointed out therefrom that in the said notice, the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndelwal, [2019] 108 taxmann.com 183 (SC). Accordingly, ld. DR submitted that the penalty imposed by the AO and confirmed by the CIT(A) deserves to be upheld for the both the assessment years under appeals. 7. After considering the submissions of both the sides and perusing the entire material available on record, we find that the facts in the present appeal are not in dispute and the Assessing Officer has levied respective penalty u/s.271(1)(c) of the Act for the respective assessment years under consideration. 8. Hon'ble Apex Court vide judgment in case of M/s. SSA's Emerald Meadows, (2016) 73 taxmann.com 248(SC) dismissed the Special Leave Petition filed by the Revenue against the judgment rendered by Hon'ble High Court of Karnataka whereby identical issue was decided in favour of the assessee. Operative part of the judgment in case of M/s. SSA's Emerald Meadows (supra) decided by Hon'ble High Court of Karnataka is reproduced below :- 2. This appeal has been filed raising the following substantial questions of law: (1) Whether, omission if assessing officer to explicitly mention that penalty proceedings are being initiated for furnishing of inaccu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner without applying any mind which is bad in law, hence is not a valid notice sufficient to impose penalty u/s 271(1)(c) of the Act. 10. The penalty provisions of section 271(1)(c) of the Act are attracted where the assessee has concealed the particulars of income or furnished inaccurate particulars of such income. It is also a well-accepted proposition that the aforesaid two limbs of section 271(1)(c) of the Act carry different meanings. Therefore, it was imperative for the Assessing Officer to strike- off the irrelevant limb so as to make the assessee aware as to what is the charge made against him so that he can respond accordingly. The Hon'ble Karnataka High Court in the case of Manjunatha Cotton Ginning Factory, 359 ITR 565 (Kar) observed that the levy of penalty has to be clear as to the limb under which it is being levied. As per Hon'ble High Court, where the Assessing Officer proposed to invoke first limb being concealment, then the notice has to be appropriately marked. The Hon'ble High Court held that the standard proforma of notice under section 274 of the Act without striking of the irrelevant clauses would lead to an inference of non-application of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of Hon ble Madras High Court, which has been decided in favour of the Revenue is applicable only for the jurisdictional High Court because the Special Leave Petition has been dismissed by stating as The civil appeal of the assessee is dismissed with no order as to costs. In the dismissal of appeal against the High Court of Madras, there is no detailed order. We also observed in that case, the impugned issue was raised by the assessee before the Hon ble High Court after lapse of 10 years. In this case the assessee is contesting this issue right from the First Appellate Authority. Therefore, the case law relied on by the ld. DR is also not applicable in the present case in hand. The ld. DR also tried to distinguish the judgment of the Hon ble Jurisdictional High Court in the case of Ananta Gopal Karatkal Vs. Income Tax Officer, Balasore, ITA No.30 of 2005, dated 10.04.2019, but he could not succeed. For completeness of our order, we would like to reproduce the observations of the Hon ble High Court as under :- 10.04.2019 Heard learned counsel for the appellant and learned counsel for the respondent. By way of this Appeal, the appellant-assessee has challenged the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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