SUBASH AGARWAL,BHUBANESWAR vs. ACIT, CIRCLE-2(1), BHUBANESWAR

per Hon'ble High Court, where the Assessing Officer proposed to

7 ITA Nos.259-262/CTK/2018 invoke first limb being concealment, then the notice has to be

appropriately marked. The Hon'ble High Court held that the standard

proforma of notice under section 274 of the Act without striking of the

irrelevant clauses would lead to an inference of non-application of

mind by the Assessing Officer. The Hon'ble Supreme Court in the case

of Dilip N. Shroff vs. JCIT, 291 ITR 519(SC) has also noticed that where

the Assessing Officer issues notice under section 274 of the Act in the

standard proforma and the inappropriate words are not deleted, the

same would postulate that the Assessing Officer was not sure as to

whether he was to proceed on the basis that the assessee had

concealed the particulars of his income or furnished inaccurate

particulars of income. According to the Hon'ble Supreme Court, in such

a situation, levy of penalty suffers from non- application of mind. In the

background of the aforesaid legal position and, having regard to the

manner in which the Assessing Officer has issued notice under section

274 r.w.s. 271(1)(c) of the Act dated 31.03.2013 without striking off

the irrelevant words, the penalty proceedings show a non-application

of mind by the Assessing Officer and is, thus, unsustainable.

case before the Hon'ble Supreme Court in the case of SSA's. Emarld

Meadows(supra) and, therefore, the decision of Hon'ble Supreme Court

squarely applies to the case of the assessee. Hence, respectfully

8 ITA Nos.259-262/CTK/2018 following the same, we set aside the impugned order passed by the CIT(A) in case of all the assessees in their respective appeals and cancel the order of the Assessing Officer dated 11.09.2013 levying penalty u/s.271(1)(c) of the Act and allow the sole ground of appeal raised by all the assessees in their respective appeals under consideration. 10. In the result, appeals of all the assessees are allowed. Order pronounced in the open court on 19/12/ 2019. Sd/- Sd/- (C.M.GARG) (L.P.SAHU) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER कटक Cuttack; ददनांक Dated 19/12/2019 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : अऩीलाथी / The Appellant- 1.

प्रत्यथी / The Respondent- 2. आयकि आयुक्त(अऩील) / The CIT(A), 3. आयकि आयुक्त / CIT 4. ववभागीय प्रनतननधध, आयकि अऩीलीय अधधकिण, कटक / DR, ITAT, 5. Cuttack गार्ा पाईल / Guard file. 6. सत्यावऩत प्रनत //True Copy// आदेशािुसार/ BY ORDER,

(Senior Private Secretary) आयकर अपीऱीय अधिकरण, कटक / ITAT, Cuttack