HARI PRASAD BAJORIA,BANKURA vs. I.T.O.,WARD-3(1), BANKURA

Appearances by: Shri Amit Agarwal, Advocate, appeared on behalf of the assessee. Shri Supriyo Pal, JCIT, Sr. D/R, appearing on behalf of the Revenue Date of concluding the hearing : October 25th, 2019 Date of pronouncing the order : October 25th, 2019 O R D E R Per Aby T. Varkey, JM :- Both these appeals filed by the assessee are directed against the common order passed by Ld. CIT(A) - Durgapur, dated 17/05/2019, confirming the penalty imposed by the AO u/s 271(1)(c) of the Income Tax Act, 1961.

4. The ld. counsel for the assessee has raised a common preliminary objection challenging the penalty imposed u/s 271(1)(c) on the ground that the notice Assessment Year: 2015-16 Hari Prasad Bajoria Assessment Year: 2015-16 Sangeeta Bajoria issued initiating the penalty proceedings being defective, the penalty imposed in issued initiating the penalty proceedings being defective, the penalty imposed in issued initiating the penalty proceedings being defective, the penalty imposed in pursuance of such defective no pursuance of such defective notice is not sustainable in law. He has placed on tice is not sustainable in law. He has placed on record, a copies of the said notice of the said notices issued by the A.O. and pointed out that the issued by the A.O. and pointed out that the irrelevant portion having been not struck off by the A.O. in the said notice irrelevant portion having been not struck off by the A.O. in the said notice irrelevant portion having been not struck off by the A.O. in the said notices, the exact charge/s against the assessee as to w against the assessee as to whether he concealed the particulars of the particulars of his income or furnished inaccurate particulars of such income was not clear. In his income or furnished inaccurate particulars of such income was not clear. In his income or furnished inaccurate particulars of such income was not clear. In support of his contention, the support of his contention, the Learned counsel for the assessee has relied relied upon the decision of the Coordinate B Bench in the case of Jeetmal Choraria vs ACIT al Choraria vs ACIT rendered vide its order dated 01.12.2017 01.12.2017 passed in ITA No. 956/Kol/2016 wherein a similar wherein a similar issue has been decided by the Tribunal after taking into consideration, the relevant decided by the Tribunal after taking into consideration, the relevant decided by the Tribunal after taking into consideration, the relevant decision of the different High Courts vide paragraph no. 14 a decision of the different High Courts vide paragraph no. 14 and 15 of its order nd 15 of its order which read as under: “From the aforesaid discussion it can be seen that the line of reasoning of the “From the aforesaid discussion it can be seen that the line of reasoning of the “From the aforesaid discussion it can be seen that the line of reasoning of the Hon’ble Bombay High Court and the Hon’ble Patna High Court is that issuance of Hon’ble Bombay High Court and the Hon’ble Patna High Court is that issuance of Hon’ble Bombay High Court and the Hon’ble Patna High Court is that issuance of notice is an administrative device for informing the assessee about the proposal to notice is an administrative device for informing the assessee about the proposal to notice is an administrative device for informing the assessee about the proposal to levy penalty in order to enable him to explain as to why it should not be done. in order to enable him to explain as to why it should not be done. in order to enable him to explain as to why it should not be done. Mere mistake in the language used or mere non Mere mistake in the language used or mere non-striking of the inaccurate portion striking of the inaccurate portion cannot by itself invalidate the notice. The Tribunal Benches at Mumbai and Patna cannot by itself invalidate the notice. The Tribunal Benches at Mumbai and Patna cannot by itself invalidate the notice. The Tribunal Benches at Mumbai and Patna being subordinate to the Ho being subordinate to the Hon’ble Bombay High Court and Patna High Court are n’ble Bombay High Court and Patna High Court are bound to follow the aforesaid view. The Tribunal Benches at Bangalore have to bound to follow the aforesaid view. The Tribunal Benches at Bangalore have to bound to follow the aforesaid view. The Tribunal Benches at Bangalore have to follow the decision of the Hon’ble Karnataka High Court. As far as benches of follow the decision of the Hon’ble Karnataka High Court. As far as benches of follow the decision of the Hon’ble Karnataka High Court. As far as benches of Tribunal in other jurisdictions are concerned, ther Tribunal in other jurisdictions are concerned, there are two views on the issue, e are two views on the issue, one in favour of the assessee rendered by the Hon’ble Karnataka High Court in the one in favour of the assessee rendered by the Hon’ble Karnataka High Court in the one in favour of the assessee rendered by the Hon’ble Karnataka High Court in the case of Manjunatha Cotton & Ginning (supra) and other of the Hon’ble Bombay case of Manjunatha Cotton & Ginning (supra) and other of the Hon’ble Bombay case of Manjunatha Cotton & Ginning (supra) and other of the Hon’ble Bombay High Court in the case of Smt. Kaushalya. It is settled legal positi High Court in the case of Smt. Kaushalya. It is settled legal position that where on that where two views are available on an issue, the view favourable to the assessee has to be two views are available on an issue, the view favourable to the assessee has to be two views are available on an issue, the view favourable to the assessee has to be followed. We, therefore, prefer to follow the view expressed by the Hon’ble followed. We, therefore, prefer to follow the view expressed by the Hon’ble followed. We, therefore, prefer to follow the view expressed by the Hon’ble Karnataka High Court in the case of Manjunatha Cotton & Ginning (supra). Karnataka High Court in the case of Manjunatha Cotton & Ginning (supra). Karnataka High Court in the case of Manjunatha Cotton & Ginning (supra). We have already observed that the show cause notice issued in the present case ready observed that the show cause notice issued in the present case ready observed 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 u/s 274 of the Act does not specify the charge against the assessee as to whether it u/s 274 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 is for concealing particulars of income or furnishing inaccurate particulars of is for concealing particulars of income or furnishing inaccurate particulars of income. The show cause income. The show cause notice u/s 274 of the Act does not strike out the notice u/s 274 of the Act does not strike out the inappropriate words. In these circumstances, we are of the view that imposition of inappropriate words. In these circumstances, we are of the view that imposition of inappropriate words. 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 penalty cannot be sustained. The plea of the ld. Counsel for the assessee which is penalty cannot be sustained. The plea of the ld. Counsel for the assessee which is based on the decisions referred to in t based on the decisions referred to in the earlier part of this order has to be he earlier part of this order has to be accepted. We, therefore, hold that imposition of penalty in the present case cannot accepted. We, therefore, hold that imposition of penalty in the present case cannot accepted. We, therefore, hold that imposition of penalty in the present case cannot be sustained and the same is directed to be cancelled.” be sustained and the same is directed to be cancelled.”