DHOOP SINGH,JAIPUR vs. ITO WARD - 1(4), JAIPUR, JAIPUR

We may observe that even if the appellant-applicant is a senior citizen, he was required to check the portal and his e-mail account on regular basis and be in contact of his Ld. AR to know the status of the appeal. Ld. AR for the appellant-applicant, through whom the appeal before Learned CIT(A) was filed, was also required to inform the assessee about passing of the impugned order. The fact remains that there is delay of 123 days in filing of the appeal. In the given facts and circumstances, we deem it a fit case to condone the delay in filing of the appeal while imposing cost of Rs.1,000/- on the appellant. Costs to be deposited in "Prime Minister National Relief Fund".

Ld. AR for the appellant and Ld. DR for the Revenue have also advanced arguments in the appeal on merits. Appellant-applicant is feeling aggrieved by imposition of penalty of Rs.16,173/- u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as "the Act"), by the Assessing Officer. Initially, said order was challenged before Learned CIT(A). Vide order dated 26.03.2018 by the impugned order dated 05.04.2024, Learned CIT(A) has upheld the levy of penalty and dismissed the appeal.

It may be mentioned here that the penalty has been levied on the ground that the assessee concealed particulars of his income as regards financial year 2006-07, corresponding to the assessment year 2007-08. The only contention raised by Ld. AR for the appellant is that while issuing notice u/s 271(1)(c) of the Act, the Assessing Officer did not specify particular of limb of the said provision, and as such, penalty order deserves to be set aside, but Learned CIT(A) has upheld the same. In support of his contention, Ld. AR has referred to decision by Hon'ble Supreme Court in case of Dilip N. Shroff v. JCIT, (2007) 291 ITR 519 and also the decision by our own Hon'ble High Court in case of Shevata Construction Co. Pvt. Ltd., ITA No. 534/2008. In the case of Dilip N. Shroff, Hon'ble Apex Court observed that while issuing notice u/s 274 r.w.s.271 of the Act, in the standard format, the Assessing Officer should delete inappropriate words or paragraphs, otherwise it may indicate that the Assessing Officer himself was not sure as to whether he had proceeded on the basis that the assessee had concealed his income or had furnished in accurate particulars of income. In this way, the assessee would be deprived of a fair opportunity to explain its stand, and it would amount to violation of principles of natural justice.

As is available from the copy of the notice u/s 274 of the Act issued by the Assessing Officer to the assessee, it was issued r.w.s.271 of the Act. In the notice, while giving description of Section 271, following expression was used: "271(1)(c) concealed particulars of income or furnished inaccurate particulars of income" From the above said expression used in the notice, it can safely be said that the assessee was not apprised as to whether he to show cause as regards concealment of particulars of income or furnishing of inaccurate particulars of income. The correct procedure to be followed was to specify in the notice that the assessee was required to explain concealment of particulars of his income. In other words, this specific limb of section 271(1)(c) of the Act was to be brought to the notice of the assessee, so as to enable him to explain the same. Ld. DR submits that in the assessment order dated 29.09.2014 as regards the quantum proceedings, the Assessing Officer observed that the assessee had concealed the income, and as such it cannot be said that the assessee was not aware of the specific allegations leveled against him, and therefore, there is no merit in this appeal.

However, taking into consideration the decisions referred to above and the provisions of section 274 of the Act, we find when the notice did not specify part of the limb of the offence u/s 271(1)(c) of the Act and rather contained two aspects i.e. concealment of particulars of income or furnishing of inaccurate of income. Accordingly, said notice cannot be said to be a valid notice. Consequently, penalty levied by the Assessing Officer deserved to be set aside. Result 10. In view of the above discussion, the impugned order passed by the Learned CIT(A) sustaining the penalty order, which is based on invalid notice, deserves to be set aside. Accordingly, the appeal is hereby allowed and the impugned order passed by the Learned CIT(A) sustaining the penalty, is hereby set aside. File be consigned to the record room after the needful is done by the office. Order pronounced in the open court on 21/01/2025. Sd (राठौड़ कमलेश जयन्तभाई ) (RATHOD KAMLESH JAYANTBHAI) लेखा सदस्य / Accountant Member जयपुर/ Jaipur दिनांक/Dated:-/01/2025 *Santosh आदेश की प्रतिलिपिअग्रेशित /