KASHIVISHWESWAR POULTRY AND AGRO ENTERPRISES PVT.LTD,PUNE vs. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE - 11(1), PUNE

ORDER

PER DR. DIPAK P. RIPOTE, AM:

1. The learned CIT(A) erred on facts and in law in upholding penalty of Rs.5,00,000 u/s 271(1)(c) of the Income Tax act. He failed to appreciate the facts and correct legal position in its proper perspective.

2. The appellant craves leave to add, alter, delete or substitute all or any of the above grounds of appeal.”

A.Y. 2006-07 Kashivishweshwar Poultry & Agro Enterprises Pvt. Ltd., (A)

4.1 The Hon’ble Bombay High Court has held in the case of Ganga Iron & Steel Trading Co. v/s Commissioner of Income Tax. [2022] 135 taxmann.com 244 (Bombay) order dated 22.12.2021 as under: Quote, “10. We find that the law as laid down by the Full Bench applies on all fours to the facts of the present case as in the show cause notice dated 12-2-2008, the Assistant Commissioner of Income-tax is not clear as to whether there was concealment of particulars of income or that the Assessee had furnished inaccurate particulars of income. We therefore find that issuance of such show cause notice without specifying as to whether the Assessee had concealed particulars of his income or had furnished inaccurate

A.Y. 2006-07 Kashivishweshwar Poultry & Agro Enterprises Pvt. Ltd., (A) particulars of the same has resulted in vitiating the show cause notice.

Heavy reliance was placed by the learned counsel for the Revenue on the decision in Mak Data (P.) Ltd. (supra) to urge that the penalty contemplated by section 271 (1) (c) of the said Act was in the nature of civil liability and mens rea was not essential therein. The decision in Dilip N. Shroff (supra) having been held as not laying down good law in Dharmendra Textile Processors Ltd. (supra), it was submitted that the show cause notice issued in the present proceedings was liable to be upheld. It may be noted that all the decisions relied upon by the learned counsel for the Revenue were considered by the Full Bench while answering the issues referred to it on reference. The Full Bench having considered these decisions and having answered the question as regards defect in the notice under section 271(1)(c) of the said Act resulting in vitiating the penalty proceedings, we find ourselves bound by the answers given by the Full Bench. It would not be permissible for us to disregard this aspect and take a different view of the matter.

Accordingly substantial question of law no. III is answered by holding that since the show cause notice dated 12-2-2008 does not indicate whether there was concealment of particulars of income or furnishing of incorrect particulars of such income, the same would vitiate the penalty proceedings.” Unquote.

4.2 In the case under consideration also the AO has not struck the appropriate words in the penalty notice. Therefore, respectfully following the Hon’ble jurisdictional High Court’s order, it is held that the penalty u/s.271(1)(c) of the Act, is not maintainable. Hence, the Assessing Officer is directed to delete the penalty under section A.Y. 2006-07 Kashivishweshwar Poultry & Agro Enterprises Pvt. Ltd., (A)

271(1)(c) of the Act, accordingly, grounds of appeal raised by the Assessee are Allowed.