RITU MALIK,NEW DELHI vs. ITO, WARD- 62(5), NEW DELHI

This is an appeal filed by the assessee against the order of the CIT(A)- 20 dated 16.03.2018 for the A. Y. 2008-09

The sole issue involved in this appeal is that the Commissioner of Income Tax (Appeals) erred in confirming the levy of penalty of Rs.676642/- u/s 271 (1) (c) of the Act.

At the outset, ld Authorised Representative of the assessee filed before us copy of notice issued u/s 271 (1) © of the Act dated 29.02.2016, copy of which is placed on record and pointed out there from that in the said notice, the Assessing Officer has stated as under :- “Where in the course of proceedings before me for the assessment year 2008-09, it appears to me that you :-

He submitted that it is not clear from the said notice issued u/s 271 (1) (c) of the Act by the Assessing Officer whether the show cause is issued to the assessee for concealment of particulars of income or for furnishing inaccurate particulars of income.

The Ld. DR on the other hand submitted that the Ld. CIT(A) at page 10 para 6.7 of his order has stated that in the photocopy of the penalty notice submitted by the appellant the word concealed particulars has been strike off.

The Ld. AR of the assessee filed xerox copy of the notice dated 29.02.2016 issued u/s 274 r/w section 271 of the Act 1961 together with the original copy of the said notice and demonstrated that the observation of the CIT(A) in his order the word concealed particulars has been strike off is factually incorrect.

The Ld. DR could not controvert the above submissions of the AR of the assessee by producing any evidence or material before me.

In the above background of the case I find that the Tribunal in the case of Ashok Kumar Chauhan Prop M/s. Gurucharan Jewellers Vs. ITO reported in 2018 (12) TMI 1386 ITAT Delhi has held as under :-

SSA's Emerald Meadows, (2016) 73 taxmann.com 248(SC) dismissed the Special Leave Petition filed by the Revenue against the judgment rendered by Hon'ble High Court of Karnataka whereby identical issue was decided in favour of the assessee. Operative part of the judgment in case of M/s. SSA's Emerald Meadows (supra) decided by Hon'ble High Court of Karnataka is reproduced below “2. This appeal has been filed raising the following substantial questions of law: (1) Whether, omission if assessing officer to explicitly mention that penalty proceedings are being initiated for furnishing oj inaccurate particulars or that for concealment of income makes the penalty order liable for cancellation even when it has been proved beyond reasonable doubt that the assessee had concealed income in the facts and circumstances of the case? (2 Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in. holding that the penalty notice under Section 274 r.w.s. 271(1)(c) is had in law and. invalid inspite the amendment of Section 271(1 B) with retrospective effect and by virtue of the amendment, the assessing officer has initiated the penalty by properly recording the satisfaction for the same? (3) Whether on the facts and in the circumstances of the case, the Tribunal was justified in deciding the appeals against the Revenue on the basis of notice issued, under Section 274 without taking into consideration the assessment order when the assessing officer has specified that the assessee has concealed particulars of income? The Tribunal has allowed the appeal filed by the 3. assessee holding the notice issued by the Assessing Officer under Section 274 read with Section 271(1)(c) of the Income Tax Act, 1961 (for short 'the Act') to be bad in law as it did not specify 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. .The Tribunal, while allowing the appeal of the assessee, has relied 01 the derision of the Division Bench of this Court rendered In the case of COMMISSIONER or INCOME TAX -VS- MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. In our view, since the matter is covered by judgment 4. of the Division Bench of this Court, we are of the opinion, no substantial question of law arises in this appeal for determination by this Court, the appeal is accordingly dismissed. ”

In the result, the appeal of the assessee is allowed.