TMI Blog2023 (7) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... S., JM: This appeal by Assessee is filed against the order of Learned Commissioner of Income Tax (Appeals)-23, New Delhi [ Ld. CIT(A , for short], dated 15.01.2020 for Assessment Year 2009-10. 1) That on the facts and in the circumstances of the case and in law. Ld CIT-A grossly erred in without appreciating that the impugned penalty order u/s 271(1)(c) was baseless, void-ab-initio and penalty was levied on arbitrary and unlawful reasons. 2) That on the facts and in the circumstances of the case and in law, Ld CIT-A grossly erred in without appreciating that the Ld AO has erred in law and facts of the case of levying penalty as the assessment order for AY 2009-10 is invalid and the penalty levied on the basis of such assessment order / additions are also invalid. The reasons the assessment order is invalid due to the facts. i) Reasons were recorded without application of mind and with the facts in non-existence. ii) The approval given to the reasons recorded by the Hon'ble Pr CIT is without application of mind and in a mechanical manner. iii) Four consequent events has occurred in one day in such a speedy manner, which can't be due to human pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion/requirements in it has been adhered to. Vilation Anal Altem partem De Principles of Naturalistic 8.) That on the facts and in the circumstances of the case and in law, Ld CIT-A grossly erred in without appreciating that the penalty order of Learned Assessing Officer is bad in Law and facts as it is prejudice to the interests of the Assessee due to lack of natural justice or violation of principles natural justice. Further no show-cause notice was issued before passing such penalty order. Others 9. That the Appellant prays for the grant of permission to add, alter, delete or modify, any or all the grounds of appeal at any time on or before or during the time of hearing before the Hon'ble CIT(A). 2. The brief facts of the case are that the assessment order came to be passed against the assessee u/s 147 r.w.s. 143(3) of the Act by determining the income of the assessee at Rs. 12,86,550/- as against the return income of Rs. 4,94,550/-. In continuation with the assessment order, the penalty proceedings have been initiated against the assessee and an order u/s 271(1)(c) of the Act r.w.s. 274 of the Act came to be issued on 28/03/2019 by imposing pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncealment of particulars of income or furnishing of inaccurate particulars of such income. It can be seen from the said notice, Assessing Officer did not strike off irrelevant limb in the notice specifying the charge for which notice was issued. 7. The identical issue as to whether the order of the penalty is sustainable which was initiated by issuing a defective notice without striking off irrelevant limb and without specifying the charge for which notice was issued? has been decided by the Hon'ble Bombay High Court (full bench at Goa) in the case of Mr. Mohd. Farhan A. Shaikh vs. ACIT [434 ITR (1)] and the Hon'ble High Court held as under:- Question No. l: If the assessment order clearly records satisfaction for imposing penalty on one or the other, or both grounds mentioned in Section 271(1)(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 sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 274. So asserts Kaushalya. In fact, for one assessment year, it set aside the penalty proceedings on the grounds of non-application of mind and prejudice. 186. That said, regarding the other assessment year, it reasons that the assessment order, containing the reasons or justification, avoids prejudice to the assessee. That is where, we reckon, the reasoning suffers. Kaushalya'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 Dilip 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 conceal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by us; so we direct the Registry to place these two Tax Appeals before the Division Bench concerned for further adjudication. 8. As could be seen from the above the Hon'ble Bombay High Court (Full Bench at Goa) in the case of Mr. Mohd. Farhan A. Shaikh v. ACIT [(2021) 434 ITR 1 (Bom)] while dealing with the issue of non-strike off of the irrelevant part in the notice issued u/s. 271(1)(c) of the Act, held that assessee must be informed of the grounds of the penalty proceedings only through statutory notice and an omnibus notice suffers from the vice of vagueness. 9. 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 notice u/s. 274 r.w.s. 271(1)(c) of the Act was issued without striking off the irrelevant portion of the limb and failed to intimate the assessee the relevant limb and charge for which the notices were issued. 10. Thus, by following the above ratio, we hold that, the penalty order passed u/s 271(1)(c) of the Act by the Assessing Officer for A.Y 2009-10 and the order of the CIT(A) in confirming the penalty order are erroneous. Accordingly, the penalty order dated 23/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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