TMI Blog2023 (2) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus the penalty proceedings stand vitiated on account of defect in the penalty notices, issued under Section 271(1)(c) read with Section 274 of the Act. - Decided in favour of assessee. - ITA No. 5648/MUM/2011 And ITA No. 5649/MUM/2011 And ITA No. 5650/MUM/2011 And ITA No. 5651/MUM/2011 - - - Dated:- 7-2-2023 - Shri M. Balaganesh, Accountant Member And Shri Rahul Chaudhary, Judicial Member For the Appellant/Assessee : Ms. Aarti Sathe, Ms. Aasawari Kadam For the Respondent/Department : Shri Girish Dave, Special Counsel, Shri Chetan Kacha ORDER PER RAHUL CHAUDHARY, JUDICIAL MEMBER: 1. This is batch of 4 appeals pertaining to the Assessment Year 2002-03 preferred by four different assessees, namely Mr. Hasmukh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notice issued by the assessing officer is bad in law since the assessing officer not deleted the relevant paras i.e. whether the assessee has concealed the particulars of income or whether the assessee has furnished inaccurate particulars of income. 5. When the appeal was taken up for hearing, the Ld. Authorised Representative for the Assessee, inviting our attention to the additional ground raised by the Assessee, vide letter dated 06.03.2018. With the consent of both the sides we have heard the Ld. Authorised Representative for the Assessee and the Ld. Counsel for the Revenue on the admission of the additional ground as well as on merits. 6. The Ld. Authorised Representative for the Assessee submitted that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Act for raising the additional ground before the Tribunal. In support of her contentions she relied upon the judgment of the Hon ble Supreme Court in the case of National Thermal Power Company Ltd. vs. CIT : [1998] 229 ITR 283. She further submitted that first penalty notice, dated 30.12.2009, and reply dated 31.01.2011 filed by the Assessee in response to the second penalty notice, dated 25.01.2011, have been placed on record as Annexure-A and Annexure-B to the written response, dated 30.09.2021, whereas the second notice, dated 25.01.2011 was already on record. In view of the aforesaid, she submitted that the additional ground be admitted. She submitted that on merits the issue raised in the additional ground stands dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been informed whether penalty proceedings were initiated for furnishing inaccurate particulars of income or for concealment of income. The additional ground raised by the Assessee is based upon the facts contained in the notices issued by the Assessing Officer under Section 271(1)(c) read with Section 274 of the Act. The Hon ble Supreme Court has, in the case of National Thermal Power Company Ltd. (supra), observed as under: 5. Under section 254 of the Income-tax Act, 1961, the Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is, thus, expressed in the widest possible terms. The purpose of the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishable from the facts in the case of Mohd. Farhan A Shaikh (supra). In both the cases notices under Section 271(1)(c) read with Section 274 of the Act were omnibus show cause notices issued without deleting or striking off the inapplicable part. Thus, the statutory notices did not provide the ground on which the penalty proceeding was initiated whether the penalty was sought to be levied for furnishing inaccurate particulars of income or for concealment of income. 13. In the case Mohd. Farhan A Shaikh Vs. DCIT (supra) the full Bench of the Hon ble Bombay High Court has held that a mere defect in the notice - not striking off the irrelevant matter, would vitiate the penalty proceedings. The relevant extract of the aforesaid judgment re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being invalid and without jurisdiction. Thus, the additional ground raised by the Assessee is allowed. 15. Since the issue raised in the additional ground and facts related thereto in ITA No. 5649/Mum/2011 preferred by Mr. Hasmukh I. Gandhi, ITA No. 5650/Mum/2011 preferred by Mr. Chintan H. Gandhi, and ITA No. 5651/Mum/2011 preferred by Mrs. Madhu H. Gandhi are identical to ITA No. 5648/Mum/2011 above, adopting the reasoning given hereinabove while admitting the additional ground raised in ITA No. 5648/Mum/2011 and allowing the same, the additional grounds raised in ITA No. 5649/Mum/2011, ITA No. 5650/Mum/2011 and ITA No. 5651/Mum/2011 are admitted and allowed. 16. In result, all the four appeals are allowed. Order pronounced on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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