9911796707
TMI Blog2022 (12) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal:- "1. That learned Commissioner of Income Tax (Appeals) has erred both in law as well as on facts in confirming the levy of penalty of Rs.8,87,136/- u/s 271(1)(c) of the Act, levied by the learned Assessing Officer, without appreciating that penalty was levied merely because certain addition have been confirmed by the CIT(A) and no appeal was filed by the Assessee as it has no tax liability and closed the business. While confirming the penalty levied u/s 271(1)(c) of the Act, learned Commissioner of Income Tax (Appeals) has erred in failing to appreciate that: (i) The learned Assessing Officer was not satisfied whether Assessee has concealed or filed inaccurate particulars of income on the additions sustained by the CIT (A), whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iding the reasonable sufficient opportunity to the Assessee." 3. Brief facts of the case are that, the assessee filed its return of income declaring loss of Rs. (-)47,34,488/- and the assessment was completed u/s 144 of the Act at a total income of Rs. 79,85,945/-. The addition has been made at Rs. 54,02,751/- as unexplained credits introduced in garb of share application money, similarly, addition u/s 68 of the Act was also made in respect of unexplained Sundry Creditors of Rs. 14,05,580/- and further depreciation of Rs. 53,978/- was disallowed and the fixed assets claimed to be purchased during the year under consideration. In the quantum appeal, the Ld.CIT(A) upheld partial addition made u/s 68 of the Act confirming the addition of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to be quashed. 9. Per contra, the Ld. AR has relied on the orders of the Lower Authorities. 10. We have heard the parties, perused the material on record and gave our thoughtful consideration 11. We have perused notice issued u/s 274 read with Section 271 of the Act, it is found that the Ld. A.O. has not specified any limb or charge for which the notice was issued i.e. either for concealment of particulars of income or furnishing of inaccurate particulars of such income. It can be seen from the notice issued u/s 274 read with Section 271(1)(c) of the Act, Assessing Officer did not strike off irrelevant limb in the notice specifying the charge for which notice was issued. The notice issued u/s 274 read with Section 271(1)(c) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to discuss the aspect of 'prejudice? 184. Indeed, Kaushaiya did discuss the aspect of prejudice. As we I.T.A.No.1409/Del/2016 have already noted, Kaushaiya noted that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ushalya's insistence that the previous proceedings supply justification and cure the defect in penalty proceedings has not met our acceptance. Question No. 3: What is the effect of the Supreme Court's decision in Dilip N. Shroff on the issue of non-application of mind when the irrelevant portions of the printed notices are not struck off ? 187. In DUip N. Shroff, for the Supreme Court, it is of "some significance that in the standard Pro-forma used by the assessing officer in issuing a notice despite the fact that the same postulates that inappropriate words and paragraphs were to be 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecedential prop, we may refer to Rajesh Kumar v. CIT[74], in which the Apex Court has quoted with approval its earlier judgment in State of Orissa v. Dr. Binapani Dei[ 75]. According to it, when by reason of action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice must be followed. In such an event, although no express provision is laid down on this behalf, compliance with principles of natural justice would be implicit. If a statue contravenes the principles of natural justice, it may also be held ultra vires Article 14 of the Constitution. 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 practi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
