TMI Blog2023 (5) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... . YOGESH KUMAR U.S., JUDICIAL MEMBER Appellant by Sh. Anup Sharma, Adv Sh. Sanjay Parashar, Adv Respondent by Sh. Amit Shukla, Sr DR ORDER PER YOGESH KUMAR U.S., JM This appeal is filed by the assessee against the order dated 26/03/2019 passed by the ld. Commissioner of Income Tax (Appeals) 7, Ghaziabad, hereinafter referred to CIT (Appeals)] for Assessment Year 2009-10. 2. The assessee has raised the following substantive grounds of appeal:- 1. That the Ld. CIT(A) erred in law, on facts and in surrounding circumstances in dismissing the appeal in limine, in a cursory and summary manner without discussing the merits of appeal leading to injustice to the hapless appellant. 2. That the Ld. CIT(A) also erred in law in failing to appreciate that no penalty proceedings are liable to be initiated/finalised during the pendency of quantum appeal. 3. That the Ld. CIT(A) also erred in law in failing to appreciate that the penalty is imposable either for concealment of particulars of income or for furnishing of inaccurate particulars of such income and consequently the imposition of impugned penalty for both limbs by Ld. A.O. tantamounts to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leaded by way of an affidavit for condonation of delay on the ground that the assessee could not file the appeal on time due to prolonged aliment. The assessee has also produced medical certificate to substantiate the said claim. For the reasons stated in the affidavit, we condone the delay in filing the present appeal. 6. We have heard the parties, perused the material on record and gave our thoughtful consideration. 7. It is found that the assessee has filed an appeal before the CIT(A) with a delay of more than 8 months. The assessee has given explanation that the certified copy u/s 271 (1)(c) for the Assessment Year 2009-10 was received on 25/01/2018 by the assessee and as appeal application filed on 22/02/2018 is being within the prescribed time as per Income Tax Act, 1961. The Ld. CIT(A) without even calculating the days of delay in filing the appeal, dismissed the appeal in limine. The copy of the penalty order placed on record, which reveals that the certified copy has been issued by the Income Tax Officer, Ward-1(4), Ghaziabad on 25/01/2018. There is no material on record to show that the penalty order has been served on the assessee prior to the said date i.e. 25/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing penalty on one or the other, or both grounds mentioned in Section 271(l)(c), does a mere defect in the notice--not striking off the irrelevant matter--vitiate the penalty proceedings? 181. It does. The primary burden ties on the Revenue. In the assessment proceedings, it forms an opinion, prima facie or otherwise, to launch penalty proceedings 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, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 nonappiication of mind. And, therefore, the infraction of a mandatory procedure leading to penai con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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