TMI Blog2022 (11) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee's case as the notice u/s. 274 r.w.s. 271(l)(c) of the Act were issued without striking off the irrelevant portion of the limb and failed to intimate the assessee the relevant limb and charge for which the notices were issued. We are of the opinion that, the penalty order passed u/s 271(1)(c) by the AO and the order of the CIT(A) in confirming the penalty order are erroneous. Accordingly, the penalty order dated 01/03/2017 passed by the A.O for Assessment Year 2011-12 is hereby quashed. Accordingly, Assessee s Grounds of Appeal are allowed. - I.T.A. No. 8802/DEL/2019 - - - Dated:- 21-10-2022 - DR. B. R. R. KUMAR, ACCOUNTANT MEMBER AND SH. YOGESH KUMAR U.S., JUDICIAL MEMBER Appellant by : Sh. Saurav Rohtagi, CA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional charges on the VAT amount. Consequently, penalty proceedings have been initiated against the assessee and an order of penalty has been passed on 01/03/2017 by imposing at 100% on tax to be evaded at Rs. 11,90,808/-. 5. Aggrieved by the penalty order dated 01/03/2017 the assessee has preferred an appeal before the CIT(A). The Ld.CIT (A) vide order dated 30/09/2019 by confirming the penalty imposing with the Assessing Officer dismissed the appeal filed by the assessee. 6. Aggrieved by the order dated 30/09/2019, the assessee has preferred the present appeal on the grounds mentioned above. 7. The Ld. Counsel for the assessee vehemently submitted that the penalty notice has been passed u/s 274 without any specific charge, hence n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1)(c) of the Act, Assessing Officer did not strike off irrelevant limb in the notice specifying the charge for which notice was issued. 12. The identical issue as to whether the order of the penalty is sustainable which was initiated by issuing a defective notice without striking off irrelevant limb and without specifying the charge for which notice was issued? has been decided by the Hon'ble Bombay High Court (full bench at Goa) in the case of Mr. Mohd. Farhan A. Shaikh vs. ACIT [434 ITR (1)] and the Hon'ble High Court held as under:- Question No. l: If the assessment order clearly records satisfaction for imposing penalty on one or the other, or both grounds mentioned in Section 271(l)(c), does a mere defect in the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndeed, Kaushaiya did discuss the aspect of prejudice. As we I.T.A.No.1409/Del/2016 have already noted, Kaushaiya noted that the assessment orders already contained the reasons why penalty should be initiated. So, the assessee, stresses Kaushaiya, fully knew in detail the exact charge of the Revenue against him . For Kaushaiya, the statutory notice suffered from neither nonapplication of mind nor any prejudice. According to it, the so-called ambiguous wording in the notice [has not] impaired or prejudiced the right of the assessee to a reasonable opportunity of being heard . It went onto observe that for sustaining the piea of natural justice on the ground of absence of opportunity, it has to be established that prejudice is caused to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deleted, but the same had not been done . Then, Dilip N. Shroff, on facts, has felt that the assessing officer himself was not sure whether he had proceeded on the basis that the assessee had concealed his income or he had furnished inaccurate particulars. 188. We may, in this context, respectfully observe 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 I.T.A.No.1409/Del/2016 ambiguity. Therefore, Dilip N. Shroff disapproves of the routine, ritualisti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 191. As a result, we hold that Dilip N. Shroff treats omnibus show cause notices as betraying non-application of mind and disapproves of the practice, to be particular, of issuing notices in printed form without deleting or striking off the inapplicable parts of that generic notice. Conclusion: We have, thus, answered the reference as required by us; so we direct the Registry to place these two Tax Appeals before the Division Bench concerned for further adjudication. 13. As could be seen from the above the Hon'ble Bombay High Court (Full Bench at Goa) in the case of Mr. Mohd. Farhan A. Shaikh v. ACIT [(2021) 434 ITR 1 (Bom)] while dealing with the issue of non-strike off of the irrelevant part in the notice issued u/s.27 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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