TMI Blog2023 (12) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... y notice and an omnibus notice suffers from the vice of vagueness. Notice issued by the Assessing Officer was bad in law if it did not specify under which limb of section 271(1)(c) of the Act the penalty proceedings had been initiated i.e. whether for concealment of particulars of income or for furnishing of inaccurate particulars of income. 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. Appeal of the assessee is allowed. - Shri Challa Nagendra Prasad, Judicial Member, And Shri Pradip Kumar Kedia, Accountant Member For the Assessee : None For the Department : Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... journment was moved. Therefore, we proceed to dispose of this appeal on hearing the ld. DR. 4. In ground ground No. 2 of the appeal the assessee contended that penalty order is invalid and bad in law as the penalty proceedings were initiated and penalty was levied without assigning specific charge, the exact limb of Section 271(1)(c) of the Act. On perusal of the penalty notice issued u/s 274 read with section 271(1)(c) of the IT Act we observed that the notice was issued mechanically stating that assessee has concealed particulars of income or furnished inaccurate particulars of such income. 5. We observe that an identical issue came up before the Hon ble Bombay High Court (full bench at Goa) in the case of Mr. Mohd. Farhan A. Shaikh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 have already noted, Kaushaiya noted that the assessment orders already contained the reasons why penalty should be initiated. So, the assessee, stresses Kaushaiya, fully knew in detail the exact charge of the Revenue against him . For Kaushaiya, the statutory notice suffered from neither nonapplication of mind nor any prejudice. According to it, the so-called ambiguous wording in the notice [has not] impaired or prejudiced the rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 practice, to be particular, of issuing notices in printed form without deleting or striking off the inapplicable parts of that generic notice. Conclusion: We have, thus, answered the reference as required by us; so we direct the Registry to place these two Tax Appeals before the Division Bench concerned for further adjudication. 6. As could be seen from the above the Hon'ble Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble jurisdictional High Court upheld the order of the Tribunal in holding that the notice issued by the Assessing Officer was bad in law if it did not specify under which limb of section 271(1)(c) of the Act the penalty proceedings had been initiated i.e. whether for concealment of particulars of income or for furnishing of inaccurate particulars of income. 9. Ratio of the 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. Thus, respectfully following th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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