TMI Blog2022 (7) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... er in which the AO has issued the notice dated 28.03.2013 u/s 274 r.w.s. 271(1)(c) without specifying the limb under which the penalty proceedings have been initiated and proceeded with, apparently goes to prove that notice in this case has been issued in a stereotyped manner without applying mind which is bad in law, hence can not be considered a valid notice sufficient to impose penalty u/s 271(1)(c) and therefore we are of the penalty is not leviable we have no hesitation to delete the penalty levied by the AO and affirmed by the Ld. Commissioner - Assessee appeal allowed. - ITA No. 2334/Del/2015 - - - Dated:- 28-7-2022 - Shri N.K. Billaiya, Accountant Member And Shri N.K. Choudhry, Judicial Member For the Appellant : Shri V.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly imposed the penalty of Rs.36,72,755/- against the Assessee u/s. 271(1)(c) of the Act for furnishing of inaccurate particulars of its income on the grounds that non-declaration of the income under special provision of the Act amounting to Rs.2,16,10,800/- tantamount to concealment of income to that extent and the assessee is liable for imposition of penalty u/s. 271(1)(c) of the Act. Further it is a clear cut case for the levy of penalty u/s. 271(1)(c) for wrong furnishing of particulars of income and concealment of income. 3. The Assessee challenged the penalty order in appeal before the ld. Commissioner, who vide impugned order dated 14.01.2015 affirmed the penalty imposed by the Assessing Officer. Being aggrieved, the Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 271(1)(c)of the Act,before going into merits of the case. 6.1 The Ld. DR at the outset contended that on the basis of defective notice or otherwise not specifying particular limb of penalty in the notice u/s 247 of the Act, the penalty levied can not be held invalid or void as per judgment of the Hon ble Delhi High Court in the case of The Commissioner Of Income ... Vs M/S Sudev Industries Limited ITA no. 805/2005 decided on 31-05-2018 {405 ITR 325(Delhi} wherein it was held: In the present case, the question is whether the service affected should be treated as null and void. 35. In view of the aforesaid discussion, we find sufficient justification and reason to allow the present appeal and answer the substantial question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether, omission if assessing officer to explicitly mention that penalty proceedings are being initiated for furnishing of inaccurate particulars or that for concealment of income makes the penalty order liable for cancellation even when it has been proved beyond reasonable doubt that the assessee had concealed income in the facts and circumstances of the case? (2 Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in. holding that the penalty notice under Section 274 r.w.s. 271(1)(c) is bad in law and. invalid inspite the amendment of Section 271(1 B) with retrospective effect and by virtue of the amendment, the assessing officer has initiated the penalty by properly recording the satisfaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evied. 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 also held that the standard proforma of notice under section 274 of the Act without striking of the irrelevant clause would lead to an inference of non-application of mind by the Assessing Officer and levy of penalty would suffers from non-application of mind. 6.4 Even the Hon ble High Court of Delhi in the case of M/s. Sahara India Life Insurance Company Ltd. 432 ITR 84 (Del.) while following the cases referred above, held as under: 21. The Respondent had challenged the upholding of the penalty imposed under Section 271(1)(c) of the Act, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the charge made against him so that he can respond accordingly. 6.6 In the background of the aforesaid legal position and, having regard to the manner in which the Assessing Officer has issued the notice dated 28.03.2013 under section 274 r.w.s. 271(1)(c) of the Act without specifying the limb under which the penalty proceedings have been initiated and proceeded with, apparently goes to prove that notice in this case has been issued in a stereotyped manner without applying mind which is bad in law, hence can not be considered a valid notice sufficient to impose penalty u/s 271(1)(c) of the Act and therefore we are of the considered view that under these circumstances, the penalty is not leviable as held by the various Court including ..... X X X X Extracts X X X X X X X X Extracts X X X X
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