1991 (5) TMI 87

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..... shable under s. 273(2)(c) of the Act, the ITO duly recorded his satisfaction to that effect in the assessment order dt. 2nd Dec., 1984. A notice under s. 274 was also issued by him accordingly. The assessee company, inter alia, submitted that no notice under s. 273(2)(c) was received by it and that it had filed From 28A on 14th Sept., 1983 and two instalments were also paid on 15th Sept., 1983 and 15th Dec., 1983. It was also mentioned that on 14th March, 1984 higher estimate was also filed on estimated income of Rs. 2,80,000. Form No. 29 was filed on 14th March, 1984 and the third instalment was paid on 15th March, 1984 as per higher estimate. It was thus pleaded that no default under s. 273(2)(c) was committed by the assessee. The ITO cou .....

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..... be necessarily recorded in the assessment order which is communicated to the assessee and results in communication of the intended or contemplated penal action for punishing the default of the assessee of the commission of which the ITO has felt satisfied in the course of the assessment proceedings. Issuance of a notice of the proposed action is the subsequent stage. Non-mentioning of his satisfaction over the commission of the particular default by the ITO in the assessment order is an illegality and not simply an irregularity curable under s. 292B of the Act. 7. Wrong mentioning of the provisions of law is of course a curable defect. But the contents of the assessment order and/or the notice issued pursuant thereto must inform the asse .....

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..... was thus not given any opportunity of being heard before being penalised for default under s. 273(2)(aa). The imposition of penalty under. That provision thus stands vitiated vide CIT vs. Lakdhirlalji (1972) 85 ITR 77 (Guj) 9. The argument that the CIT(A) had heard the assessee on that point does not cure the inherent and foundational defect in this case. For that reason the catena of rulings cited by the Deptl. Rep., which are on durability of defects in notices and proceedings under s. 292 B, are not helpful to the Revenue. 10. Since no satisfaction for commission of default punishable under s. 273(2)(aa) was recorded by the ITO in the assessment order, remand of the case to him would serve no purpose as that foundational defect canno .....

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