TMI Blog2022 (4) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... Since the provision of section 271(1)(c) is calamitous, albeit commercial, consequences, the provision is mandatory and brooks no trifling or dilution therewith, as a result we are of the considered view that, having regard to the fact that in the instant case the SCN dt. 15/03/2014 issued u/s 274 r.w.s. 271(1)(c) of the Act without specifying any limb or charge vis- -vis absence of any default on account of acceptance of return indifferently, is invalid and untenable in the eyes of law, consequently the penalty imposed u/s 271(1)(c) of the Act is bad in law and hence same is quashed accordingly - Decided in favour of assessee. - ITA No. : 104/PAN/2018 - - - Dated:- 20-4-2022 - SHRI RAVISH SOOD , JUDICIAL MEMBER And SHRI JAMLAPPA D BATTULL , ACCOUNTANT MEMBER Assessee by : Shri P. K. Bansal Revenue by : Shri Sourabh Nayak ORDER PER JAMLAPPA D BATTULL , AM The present appeal of the assessee is assailed against the order of Commissioner of Income Tax-(Appeals), Panaji-1 [for short CIT(A) ] vide order dt 05/12/2017 passed u/s 250 of the Income-tax Act, 1961 [for short the Act ] which in turn leapt out of penalty order [for short PO ] dt 10/09/2014 of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith levy, relying on plethora of judicial precedents, by an order u/s 271(1)(c) levied a minimum penalty at the rate of 100% of the tax sought to be evaded for concealment of income on the basis of income assessed u/s 147 of the Act. 3.3 Ld. CIT(A) echoing the views of assessing officer, confirmed the penalty imposed by Ld. AO. Aggrieved therewith, the appellant assessee is before us with the grounds of appeal assailed at para 2 herein above. 4. During the course of hearing, the learned counsel for the assessee [for short AR ] took us through the relevant facts of the case vis- -vis paper book and case law compilation filed on record and in support of legal ground, it is submitted that, the initiation as well imposition of penalty suffers from voice of non-application of mind of the Ld. AO and therefore penalty deserves to be deleted. Insofar the merits of the case concern, Ld. AR contended that, penalty u/s 271(1)(c) is initiated not on the foundation of assessment culminated u/s 147 of the Act, but on the basis of survey assessment records and such action of the tax authorities is bad in law, ab-initio void. Au contraire, the learned departmental representative [for short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition of penalty and unless it is made aware of any specific charge against him, the proceedings shall be violative of the principles of natural justice inasmuch as the assessee would not be in a position to put up his necessary defence appropriately. 6.2 One has to appreciate the point being canvassed by the assessee before us, which is based on the tone and drift of the notice issued u/s 274 r.w.s. 271(1)(c) of the Act dt. 15/03/2014, a copy of which has been placed on record which de-facto reads as under; Whereas in the course of proceedings before me for the assessment year 2010-11 it appears to me that you;- Have without reasonable cause failed . . . . . . . Have without reasonable cause . . . . . . . Have concealed the particulars of your Income or furnished inaccurate particulars of such Income. Have concealed the . . . . . . . (Emphasis Supplied) 6.3 The infirmity in the notice was sought to demonstrate a reflection of non-application of mind by the Ld. AO ex facie and in support thereof a reference can be made to the specific discussion laid by the Hon'ble Supreme Court in the case of Dilip N. Shroff (supra); It is of some s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Goa Dorado and PCIT Vs New Era Sova Mine wherein the Hon ble Lordships have categorically held that; No notice could be issued under Section 274, read with Section 271(1)(c), of the IT Act without indicating which particular limb of Section 271(1)(c) was invoked for initiating the penalty proceedings (Emphasis Supplied) 6.7 To demonstrate the voice of non-application of mind by the Ld. AO, we shall also refer to the one of the pivotal feature of the present litigation that, in the assessment order the Ld. AO at the epilogue of para 6 on page 3 records that, Initiate penalty u/s 271(1)(c) of the Act, 271F of the Act, 271B of the Act , however, in the notice u/s 274 r.w.s. 271(1)(c) of the Act was issued without alleging the specific limb of section 271(1)(c) of the Act which evidently brings out the reticence on the part of Assessing Officer, resultantly there is complete absentia of clear and crystallised charge being conveyed u/s 271(1)(c), which to be defended by the appellant assessee. In this regard we also refer a similar judgment of the Hon'ble Karnataka High Court in the case of S Chandrashekar Vs ACIT, reported at 396 ITR 538 (Karn) wherein a notice u/s 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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