TMI Blog2022 (4) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... ) TMI 608 - BOMBAY HIGH COURT] is squarely applicable in the present case and even the Ld. DR has not disputed this aspect of the matter. We, therefore, respectfully following the said decision of the Hon'ble Bombay High Court quash the impugned penalty imposed by the Assessing Officer under section 271(1)(c) - Appeal of assessee allowed. - I.T.A. Nos. 123, 124, 125 , 126/PAN/2018 - - - Dated:- 1-4-2022 - Dr. M. L. Meena , Member ( A ) and Anikesh Banerjee , Member ( J ) For the Appellant : Ashok Kulkarni , Advocate For the Respondents : Rijula Uniyal , Sr. D / R ORDER Per Bench These captioned appeals are filed against the order of the Learned Commissioner of Income Tax (Appeals) - Belagavi, [hereinafter the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d instructed Shri Deepak Kulkarni to forward the penalty order to M/s. K.R. Prasad, Advocates, to prepare the Appeal Memos. On my instructions, Shri Deepak Kulkarni was taking steps. 4. It is to be stated that I had a cardiac problem in the month of July/August 2014. I underwent Angiogram in KLE Hospital, Belagavi. I was advised 'bed-rest' and I was not attending to office work. Eventually, on the advice of my doctors I went to U.S. in the last week of November 2014. Due to my heart problem and on account of my absence in the office, I could not issue appropriate instructions for filing the appeal. Consequently, there is a delay of 30 days in filing the appeal. 5. I wish to inform you that, I am practicing as a Chartered A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king in the office of our company Chartered Accountants, M/s. Shivangi and Latkar having their office at Eagle Heights, No. 1521, Second Floor, Maruti Galli, Belagavi. I state that after consulting M/S. K.R. Prasad, Advocates, Bengaluru, the appeal memo's were prepared and sent to us for signature. 3. I state that appeal memo's were duly signed on 20.09.2014 and given to Mr. Deepak Kulkarni for the purpose of filing before the Commissioner of Income Tax (Appeals), Bengaluru. I understand the appeals were filed on 12.11.2014 before the Commissioner of Income Tax (Appeals), Bengaluru. 4. I state that there is a delay of 30 days in filing the appeals. I state that there is absolutely no negligence on the part of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Hon'ble Apex Court in Collector, Land Acquisition vs. Mst. Katiji Ors. [1987] 167 ITR 0471 (SC), held that when substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, the other side cannot claim to have vested right in injustice being done because non-deliberate delay. There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on a malafide. The litigation does not stand to benefit by resorting to delay, in fact he is on serious risk. The Hon'ble Supreme Court in Vedabai Aoias Vaijayanatabai Baburao Patil vs. Shantaram Baburao Patil [2002] 122 Taxman 114 (SC) held that the Court should adopt pragmat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in pursuance of such defective notice is not sustainable in law. He has placed on record, a copy of the said notices issued by the A.O. u/s. 271(1)(C) of the Act, even dt. 21/03/2006, and pointed out that the irrelevant portion having been not struck off by the A.O. in the said notices, the exact charge/s against the assessee as to whether he concealed the particulars of his income or furnishing inaccurate particulars of such income was not clear. The notices for all the assessment years are extracted for ready reference:- P.T.O 12. We have heard rival submissions, perused the material available on record, the orders of the lower authorities as well as the case-law cited. After perusing the notices issued und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Para 187] It may, in this context, be respectfully observed that a contravention of a mandatory condition or requirement for a communication to be valid communication is fatal, with no further proof. That said, even if the notice contains no caveat that the inapplicable portion be deleted, it is in the interest of fairness and justice that the notice must be precise. It should give no room for ambiguity. Therefore, Dilip N. Shroff case (supra) disapproves of the routine, ritualistic practice of issuing omnibus show-cause notices. That practice certainly betrays non- application of mind. And, therefore, the infraction of a mandatory procedure leading to penal consequences assumes or implies prejudice. [Para 188] In State of U ..... X X X X Extracts X X X X X X X X Extracts X X X X
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