TMI Blog2023 (2) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... you may show cause in writing on or before the said date which will be considered before any such order is made under section 271AAA . It is explicit that the second sentence contains a warning to the assessee to appear, failure of which would lead to making the order u/s 271AAA. Reference in the second sentence is only to the making of the order u/s 271AAA. On the other hand, the notice part informing the assessee of the charge against him has only reference to section 271 and the ingredients of section 271(1)(c). We are satisfied that the penalty order passed by the AO, pursuant to notice issued under wrong section, has been rendered void. We, therefore, set aside the penalty order as well as the consequential impugned order. Decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rival contentions and perused the relevant material on record. The ld. AR raised a legal issue by contending that the penalty was imposed u/s 271AAA by virtue of notice u/s 274 r.w.s. 271 of the Act and that too, taking note of both the limbs of section 271(1)(c) of the Act, which vitiated the penalty order. For this proposition, he relied on the judgment of Hon ble jurisdictional High Court in Ventura Textiles Ltd. vs. CIT (2020) 426 ITR 478 (Bom). Per contra, the ld. DR batted for the confirmation of full penalty instead of part affirmed in the first appeal. 4. It goes without saying that the foundation for imposition of any penalty is its Notice, which makes the assessee acquainted with the charge against him for which the penalty p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assistant Commissioner of Income Tax Central Circle 1, Nashik, Third Floor, Kendriya Rajaswa Bhawan, Gadkari Chowk, Old Agra Road, Nashik 422 002 Telephone No.(0253) 231 4866 Date : 30.03.2014. To, Shri Dileep Vijaykumar Kotecha 1, Pradhan Apartment, Pratap Nagar, Jalgaon 425 001 Whereas in the course of assessment proceedings before me for assessment year 2011-12 it appears that you:- have without reasonable cause failed to furnish me return of income which you were required to furnish by a notice given under section 22(1) / 22(2) 34 of the Indian Income Tax Act, 1922 or which you were required to furnish under section 139(1) or by a noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losed income has been defined in Explanation (a) below sub-section (4) of section 271AAA of the Act to mean any income of the specified previous year represented either wholly or partly by any money, bullion, etc found in the course of search u/s 132 of the Act which has not been recorded before the date of search in the books of account or any expenditure recorded in the books of account which is found to be false etc. The term specified previous year has been defined in Explanation (b) to mean, inter alia, the previous year which has ended before the date of search, but the date of filing the return of income under sub-section (1) of section 139 for such year has not expired and the assessee has not furnished the return of income for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he penalty u/s 271AAA. He referred to the imposition of penalty u/s 271 for the assessee to have concealed the particulars of your income or . furnished inaccurate particulars of such income . Ergo, it is evident that the AO recorded both the limbs (without striking out the irrelevant one) enshrined in 271(1)(c) of the Act in the notice for imposing the penalty under section 271AAA. Had it been a case of imposition of penalty u/s 271(1)(c), the notice on this count would have suffered irreversible deficient making the order void. 10. Right now, we are dealing with penalty u/s 271AAA of the Act, which requires its imposition on `undisclosed income . It can be seen from the notice that the AO committed two mistakes one after another, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould not be made under section 271 of the Income tax Act, 1961 . The AO reiterated here the reference to section 271 for imposing the penalty, which also finds place in the opening part of the notice. The last sentence of the para simply states that: If you do not wish to avail yourself of this opportunity of being heard in person or through authorized representative, you may show cause in writing on or before the said date which will be considered before any such order is made under section 271AAA . It is explicit that the second sentence contains a warning to the assessee to appear, failure of which would lead to making the order u/s 271AAA. Reference in the second sentence is only to the making of the order u/s 271AAA. On the other han ..... X X X X Extracts X X X X X X X X Extracts X X X X
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