SHINDE SOMANATH APPASAHEB,AHMEDNAGAR vs. INCOME-TAX OFFICER, WARD - 2 , AHMEDNAGAR

The Learned CIT(A) was failed to appreciate the explanation and the facts put forth by the Appellant with regard to the error. The Appellant had also explained that said amount of Rs.10,000/- is part and parcel of Sale consideration of Rs.51,00,000/- of agricultural land sold by his father and no additional amount was received by appellant as consenter. Hence considering the contention of the Appellant the penalty confirmed by the Learned CIT(A) be deleted.”

The sole issue of survival of penalty levied u/s 271(1)(c) on the premise of erratic and undetermined allegation sought to be adjudicated by the present appeal.

When the case was called up for physical hearing, none represented the assessee, bearing in mind contents of appeal, in the interest of justice we proceeded u/r 24 of the Income Tax Appellate Tribunal Rules, 1963 [for short “ITAT, Rules”], to adjudicate the matters ex-parte on ITAT-Pune Page 2 of 5 Shinde Somnath Appasaheb AY: 2013-14 merits, which empowers this Tribunal to decide the appeal filed by the appellant ex–parte on merits where the appellant does not appear in person or through an authorised representative and the same is done placing on record a no-objection from the learned departmental representative [for short “DR”] who without going into facts and grounds of appeal raised by the appellant, candidly sought our attention to the show cause notice [for short “SCN”] and we find that, the initiation as well imposition of penalty suffers from voice of non- application of mind of the Ld. AO deserving deletion of penalty in limine. The Ld. DR candidly congealed the deficiency in the impugned notice as regard to absence of specific charge alleged by the SCN.

5. After hearing to rival contentions of both the parties; and subject to the provisions of rule 18 ITAT, Rules perused the copy of SCN issued u/s 274 r.w.s. 271(1)(c),case laws relied upon by the appellant as well the respondent and duly considered the facts of the case in the light of settled legal position forewarned to either parties. ITAT-Pune Page 3 of 5 Shinde Somnath Appasaheb AY: 2013-14 6. In the light of judgement rendered by Hon'ble Supreme Court in “Dilip N Shroff Vs JCIT” reported at 291 ITR 519 (SC), and of Hon'ble Jurisdictional High Court of Bombay, in plethora of cases inter-alia “CIT Vs Samson Pericherry” reportedin 392 ITR 4, and recently in “Mohd. Farhan A. Shaikh Vs DCIT” reported at 434 ITR 1, we are on the considered view that, since the provision of section 271(1)(c) is calamitous, albeit commercial, consequences, and mandatory, hence brooks no trifling or dilution therewith, as a result in the instant case the SCN dt. 13/12/2016 issued u/s 274 r.w.s. 271(1)(c) of the Act without specifying any limb or charge, is invalid and untenable in the eyes of law, consequently we set aside the first appellate order and quashed the order of penalty passed u/s 271(1)(c) of the Act, being bad in law.