ARUN KUMAR BOSE ,ASANSOL vs. ITO, WARD - 1(2), , ASANSOL

None appeared on behalf of the assessee. There is no petition for adjournment either. Under these circumstances, we dispose off the case ex-parte on merits qua the assessee after hearing the ld. Departmental Representative.

Heard the ld. D/R. The assessee has challenged the penalty imposed u/s 271(1)(c) of the Act, by the Assessing Officer and confirmed by the ld. CIT(A). We find that the notice issued for initiating the penalty proceedings is defective. The penalty imposed in pursuance of such defective notice is not sustainable in law. A copy of the said notice issued by the A.O. issued u/s 274 r.w.s. 271 of the Act, dt. 23/12/2010, is placed on record and is extracted for ready reference:-

Assessment Year: 2008-09 Arun Kumar Bose Assessment Year: 2008-09 Arun Kumar Bose 3.1. The irrelevant portion have he irrelevant portion have not been struck off by the A.O. in struck off by the A.O. in the notice. The exact charge/s against the assessee as to whether he conce against the assessee as to whether he concealed the particulars of his the particulars of his income or furnished inaccurate particulars of such income income or furnished inaccurate particulars of such income is not clear. not clear. It is not clear whether the notice was issued for levy of penalty was issued for levy of penalty for failure to comply with a notice u/s for failure to comply with a notice u/s Assessment Year: 2008-09 Arun Kumar Bose 142(1)/143(2) of the Income Tax Act, 1961. W (2) of the Income Tax Act, 1961. While the notice appears to be for hile the notice appears to be for furnishing inaccurate particular of income the furnishing inaccurate particular of income the penalty was levied for concealment of penalty was levied for concealment of income. 3.2. The Hon’ble Jurisdictional High Court i The Hon’ble Jurisdictional High Court in the case of Pr. CIT vs. Dr. Murari Mohan Pr. CIT vs. Dr. Murari Mohan Koley in ITAT No. 306 of 2017, G.A. No. 2968 of 2017 Koley in ITAT No. 306 of 2017, G.A. No. 2968 of 2017, judgment dt. 18th July, 2018, held as July, 2018, held as follows:- “10. The ld. Counsel for the assessee drew our attention to the decision of the Hon'ble 10. The ld. Counsel for the assessee drew our attention to the decision of the Hon'ble 10. The ld. Counsel for the assessee drew our attention to the decision of the Hon'ble Karnataka High Court in the case of CIT vs. SSA's Emerald Meadows in of 2015 's Emerald Meadows in ITA No.380 of 2015 dated 23.11.2015 wherein the Hon'ble Karnataka High Court following its own decision in dated 23.11.2015 wherein the Hon'ble Karnataka High Court following its own decision in dated 23.11.2015 wherein the Hon'ble Karnataka High Court following its own decision in the case of CIT vs Manjunatha Cotton and Ginning CIT vs Manjunatha Cotton and Ginning factory (2013) 359 ITR 565 took a view factory (2013) 359 ITR 565 took a view that imposing of penalty u/s. 271(1)(c) of the Act is bad in law and invalid for the reason that imposing of penalty u/s. 271(1)(c) of the Act is bad in law and invalid for the reason that imposing of penalty u/s. 271(1)(c) of the Act is bad in law and invalid for the reason that the show cause notice u/s 274 of that the show cause notice u/s 274 of the Act does not specify the charge against the the Act does not specify the charge against the assessee as to whether it is for concealment of particulars of income or furnishing of assessee as to whether it is for concealment of particulars of income or furnishing of assessee as to whether it is for concealment of particulars of income or furnishing of inaccurate particulars of income. The ld. Counsel further brought to our notice that as inaccurate particulars of income. The ld. Counsel further brought to our notice that as inaccurate particulars of income. The ld. Counsel further brought to our notice that as against the decision of the Hon'b against the decision of the Hon'ble Karnataka High Court the revenue preferred an appeal le Karnataka High Court the revenue preferred an appeal in SLP in CC No.11485 of 2016 and the Hon'ble Supreme Court by its order dated 05.08.2016 in SLP in CC No.11485 of 2016 and the Hon'ble Supreme Court by its order dated 05.08.2016 in SLP in CC No.11485 of 2016 and the Hon'ble Supreme Court by its order dated 05.08.2016 dismissed the SLP preferred by the department. The ld. Counsel also brought to our notice dismissed the SLP preferred by the department. The ld. Counsel also brought to our notice dismissed the SLP preferred by the department. The ld. Counsel also brought to our notice the decision of the Hon'ble Bombay High Court in the case of CIT vs Shri Samson Perinchery Hon'ble Bombay High Court in the case of CIT vs Shri Samson Perinchery Hon'ble Bombay High Court in the case of CIT vs Shri Samson Perinchery in ITA No.1154 of 2014 dated 05.01.2017 wherein the Hon'ble Bombay High Court following in ITA No.1154 of 2014 dated 05.01.2017 wherein the Hon'ble Bombay High Court following in ITA No.1154 of 2014 dated 05.01.2017 wherein the Hon'ble Bombay High Court following the decision of the the Hon'ble Karnataka High Court in the case of of the decision of the the Hon'ble Karnataka High Court in the case of of CIT vs Manjunatha CIT vs Manjunatha Cotton and Ginning factory (supra) came to the conclusion that imposition of penalty on factory (supra) came to the conclusion that imposition of penalty on factory (supra) came to the conclusion that imposition of penalty on defective show cause notice without specifying the charge against the assessee cannot be defective show cause notice without specifying the charge against the assessee cannot be defective show cause notice without specifying the charge against the assessee cannot be sustained. Our attention was also d sustained. Our attention was also drawn to the decision of ITAT in the case of Suvaprasanna rawn to the decision of ITAT in the case of Suvaprasanna Bhattacharya vs ACIT in ITA NO 1303/Kol/2010 dated 06.11.2015 wherein identical Bhattacharya vs ACIT in ITA NO 1303/Kol/2010 dated 06.11.2015 wherein identical Bhattacharya vs ACIT in ITA NO 1303/Kol/2010 dated 06.11.2015 wherein identical proposition has been followed by the Tribunal. The learned DR relied on the order of the proposition has been followed by the Tribunal. The learned DR relied on the order of the proposition has been followed by the Tribunal. The learned DR relied on the order of the CIT(A).

We have already observed that the show cause notice issued in the present case u/s 274 bserved that the show cause notice issued in the present case u/s 274 bserved that the show cause notice issued in the present case u/s 274 of the Act does not specify the charge against the assessee as to whether it is for concealing of the Act does not specify the charge against the assessee as to whether it is for concealing of the Act does not specify the charge against the assessee as to whether it is for concealing particulars of income or furnishing inaccurate particulars of income. The show cause notice particulars of income or furnishing inaccurate particulars of income. The show cause notice particulars of income or furnishing inaccurate particulars of income. The show cause notice u/s 274 of the Act does not strike out the inappropriate words. u/s 274 of the Act does not strike out the inappropriate words. In these circumstances, we are of the view that imposition of penalty cannot be sustained. In these circumstances, we are of the view that imposition of penalty cannot be sustained. In these circumstances, we are of the view that imposition of penalty cannot be sustained. The plea of the ld. Counsel for the assessee which is based on the decisions referred to in the The plea of the ld. Counsel for the assessee which is based on the decisions referred to in the The plea of the ld. Counsel for the assessee which is based on the decisions referred to in the earlier part of this order has to be accepted. We therefore hold that imposition of penalty in lier part of this order has to be accepted. We therefore hold that imposition of penalty in lier part of this order has to be accepted. We therefore hold that imposition of penalty in the present case cannot be sustained and the same is directed to be cancelled. " the present case cannot be sustained and the same is directed to be cancelled. " the present case cannot be sustained and the same is directed to be cancelled. " Mr. Chowdhury in course of argument has urged us to remand the matter before the Mr. Chowdhury in course of argument has urged us to remand the matter before the Mr. Chowdhury in course of argument has urged us to remand the matter before the assessing officer. According to him, this was a technical flaw, which the Revenue must be ssessing officer. According to him, this was a technical flaw, which the Revenue must be ssessing officer. According to him, this was a technical flaw, which the Revenue must be given a chance to cure. The reason why the penalty order was not sustained by the Tribunal given a chance to cure. The reason why the penalty order was not sustained by the Tribunal given a chance to cure. The reason why the penalty order was not sustained by the Tribunal appears from the passages of the decision of the Tribunal quoted earlier in appears from the passages of the decision of the Tribunal quoted earlier in this judgement. this judgement. We find that there was no specific charge against the assessee in the notice. Revenue has We find that there was no specific charge against the assessee in the notice. Revenue has We find that there was no specific charge against the assessee in the notice. Revenue has missed out their opportunity to subject the assessee to the penalty proceeding by not issuing missed out their opportunity to subject the assessee to the penalty proceeding by not issuing missed out their opportunity to subject the assessee to the penalty proceeding by not issuing a proper notice. No specific case has been made out by the Revenue as to a proper notice. No specific case has been made out by the Revenue as to why the matter why the matter should be remanded except that the assessee had not participated properly in the should be remanded except that the assessee had not participated properly in the should be remanded except that the assessee had not participated properly in the assessment proceedings but for that reason best judgment assessment has been made and assessment proceedings but for that reason best judgment assessment has been made and assessment proceedings but for that reason best judgment assessment has been made and the income, which had escaped assessment has been added to the income of the income, which had escaped assessment has been added to the income of the assessee. It the assessee. It Assessment Year: 2008-09 Arun Kumar Bose was incumbent upon the Revenue to make out a specific case for imposition of penalty, on was incumbent upon the Revenue to make out a specific case for imposition of penalty, on was incumbent upon the Revenue to make out a specific case for imposition of penalty, on which count the Revenue has failed. which count the Revenue has failed. Under such circumstances, we do not find any reason to interfere with the Tribunal's order. Under such circumstances, we do not find any reason to interfere with the Tribunal's order. Under such circumstances, we do not find any reason to interfere with the Tribunal's order. The Tribunal's order does not suffer from any error of law. No substantial question of law is does not suffer from any error of law. No substantial question of law is does not suffer from any error of law. No substantial question of law is involved in this appeal. Hence, the same is dismissed. Hence, stay petition is also dismissed. involved in this appeal. Hence, the same is dismissed. Hence, stay petition is also dismissed. involved in this appeal. Hence, the same is dismissed. Hence, stay petition is also dismissed. There shall be no order as to costs. There shall be no order as to costs.

The proposition of law laid down in the above The proposition of law laid down in the above case-law is squarely applicable in squarely applicable in the present case. We, therefore, respectfully follow the present case. We, therefore, respectfully following the said decision of the the said decision of the Hon’ble Jurisdictional High Court an nd quash the impugned penalty imposed by the penalty imposed by the Assessing Officer under section 271(1)(c) under section 271(1)(c) of the Act and confirmed by the Ld. CIT(A). and confirmed by the Ld. CIT(A).

In the result, appeal of the assessee In the result, appeal of the assessee is allowed. Kolkata, the Kolkata, the 19th day of February, 2020 20.