TMI Blog2022 (12) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... only through statutory notice and an omnibus notice suffers from the vice of vagueness. Ratio of this full bench decision of the Hon'ble Bombay High Court (Goa) squarely applies to the facts of the Assessee s case as the A.O. has failed to specify the irrelevant portion of the limb and failed to intimate the assessee the relevant limb and charge for which the notices to be issued. - Decided in favour of assessee. - I.T.A. No. 8228/DEL/2018 - - - Dated:- 13-12-2022 - Dr. B. R. R. Kumar, Accountant Member And Shri Yogesh Kumar U.S., Judicial Member For the Assessee : None For the Department : Shri K. K. Mishra, Sr. D. R.; ORDER PER YOGESH KUMAR U.S., JM This appeal is filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals)-18, New Delhi [hereinafter referred to CIT (Appeals) dated 04/10/2018 for assessment year 2008-09. 2. The assessee has raised the following grounds of appeal:- 1. That the Ld.CIT(A) - 18 has wrongly and illegally passed order u/s 271(l)(c) dated 09/03/2016 confirming penalty of Rs. 1,91,458/- levied by learned ACIT. 2. That the Ld.CIT(A)- 18 had passed the order in haste and without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove the genuineness of the same and to file confirmation letters from the parties. The assessee has surrendered the said amount of Rs. 5,60,800/- and agreed for addition to be made, accordingly, A.O made addition u/s 68 of the Act treating these credit entries in the books of the assessee as unexplained. A penalty proceedings have also been initiated and the order of penalty came to be passed on 09/03/2016 by levying penalty at 100% of the tax evaded at Rs. 1,91,458/-. 4. As against the order of penalty passed u/s 271(1)(c) of the Act dated 09/03/2016, the assessee has preferred and appeal before the CIT(A) and the Ld. CIT(A) vide order dated 04/10/2018 dismissed the appeal filed by the assessee. 5. Aggrieved by the order of the Ld. CIT(A) dated 04/10/2018 the assessee has preferred the present appeal on the grounds mentioned above. 6. None appeared for the assessee even after the notices sent by the registry was duly served on the Assessee. Therefore, we deem it fit to decide the appeal after hearing the Ld. DR and verifying the material on record. 7. It is found from the record that while passing the assessment order u/s 143(3) of the Act, at Page No. 5.5, the Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s against the assessee. But that translates into action only through the statutory notice under section 271(l)(c), read with section 274 of IT Act. True, the assessment proceedings form the basis for the penalty proceedings, but they are not composite proceedings to draw strength from each other. Nor can each cure the other's defect. A penalty proceeding is a corollary; nevertheless, it must stand on its own. These proceedings culminate under a different statutory scheme that remains distinct from the assessment proceedings. Therefore, the assessee must be informed of the grounds of the penalty proceedings only through statutory notice. An omnibus notice suffers from the vice of vagueness. 182. More particularly, a penal provision, even with civil consequences, must be construed strictly. And ambiguity, if any, must be resolved in the affected assessee'sfavour. 183. Therefore, we answer the first question to the effect that Goa Dourado Promotions and other cases have adopted an approach more in consonance with the statutory scheme. That means we must hold that Kaushaiya does not lay down the correct proposition of law. Question No.2: Has Kaushaiya failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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, ritualistic practice of issuing omnibus show-cause notices. That practice certainly betrays non-appiication of mind. And, therefore, the infraction of a mandatory procedure leading to penai consequences assumes or implies prejudice. 189. In Sudhir Kumar Singh, the Supreme Court has encapsulated the principles of prejudice. One of the principles is that where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
