SHRI ONKAR SINGH ,JALANDHAR vs. INCOME TAX OFFICER WARD-3, HOSHIARPUR
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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
Per Dr. M. L. Meena, AM:
The present appeal has been filed by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals)-1, Jalandhar dated
30.03.2018 in respect of Assessment Year 2008-09.
2 ITA No. 232/Asr/2018 Onkar Singh v. ITO 2. At the outset, the ld. counsel for the assessee submitted that the ld.
CIT(A)-1, Jalandhar has dismissed the appeal of the assessee filed against
the levy of penalty u/s 271(1)(c) vide order dated 30.03.2018 by passing a
non speaking order and ignoring the judgment of Hon’ble Apex Court in
Special Leave to Appeal (CC No. 11485/2016) arising out of impugned final
judgment and order dated 23.11.2015 in ITA No. 380/2015 passed by the
Hon’ble High Court of Karnataka at Bengaluru in the case of CIT & Anr. v.
M/s SSA’s Emrald Meadows (APB pgs. 4 to 8), that the assessee’s appeal
is squarely covered by the judgment of Hon’ble Apex Court because the
AO issued a defective notice u/s 274 r.w.s. 271(1)(c) of the Income Tax
Act, 1961 for assessment year 2008-09 wherein he 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
furnishing of inaccurate particulars of income. Photocopy of the notice
issued u/s 274 r.w.s. 271(1)(c) of the Act (APG pg. 9) is reproduced as
under:
3 ITA No. 232/Asr/2018 Onkar Singh v. ITO
4 ITA No. 232/Asr/2018 Onkar Singh v. ITO 3. The counsel has further placed the reliance on the judgment of
Hon’ble Karnataka High Court in the case of Manjunatha Cotton and
Ginning Factory [2013] 359 ITR 565 and the latest judgment of Hon’ble
Bombay High Court in the case of Mohammad Farhan Akhtar v. DCIT 43
ITR 1.
The ld. DR stand by the order of the ld. CIT(A), however, he failed to
file any submission or citation in rebuttal to the contention raised by the ld.
counsel.
Having heard both the sides, perusal of material on record and case
law cited before us, it is admitted fact that the AO issued a defective notice
u/s 274 r.w.s. 271(1)(c) of the Income Tax Act, 1961 for assessment year
under consideration without specifying the limb of the section for initiating
the penalty proceedings as evident from the notice as above. It is well
settled law by the higher judicial forum that the levy of penalty on the basis
of defective notice issued u/s 274 r.w.s. 271(1)(c) of the Income Tax Act is
liable to be bad in law. In the instant case, the AO 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
furnishing inaccurate particulars of income. Thus, such a technical error
5 ITA No. 232/Asr/2018 Onkar Singh v. ITO reveal non application of mind by the AO in initiating and levying penalty
u/s 271(1)(c).
Accordingly, we hold that the order of the CIT(A)-1, Jalandhar
confirming the levy of penalty u/s 271(1)(c) is illegal and bad in law. Hence,
it is liable to be quashed. Accordingly, the penalty levied u/s 271(1)(c) is
hereby deleted.
In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 28.02.2023
Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr./P.S.* Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order
