SHILPA BIHANI,HOOGHLY vs. I.T.O.,WARD-23(2), HOOGHLY

Appearances by: Shri Somnath Ghosh, 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 :- This appeal filed by the assessee is directed against the order passed by Ld. Commissioner of Income Tax (Appeals)-6, Kolkata [ld. CIT(A)], dated 31/07/2019, confirming the penalty imposed by the AO u/s 271(1)(c) of the Income Tax Act, 1961, for the Assessment Year 2014-15 2. We have heard the arguments of the respective parties and also perused the relevant materials available on record.

4. The ld. counsel for the assessee has raised a preliminary objection challenging the penalty imposed u/s 271(1)(c) on the ground that the notice issued initiating the penalty proceedings being defective, the penalty imposed in pursuance of such defective notice is not sustainable in law. He has placed on record, a copy of the said notice issued by the A.O. and pointed out that the irrelevant portion having been not struck off by the A.O. in the said notices, the exact charge/s against the assessee as to whether he concealed the particulars of Assessment Year: 2014-15 Shilpa Bihari his income or furnished inaccur his income or furnished inaccurate particulars of such income was not clear. In ate 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 Jeetmal Choraria vs ACIT rendered vide its order dated 01.12.2017 01.12.2017 passed in 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 and 15 of its order decision of the different High Courts vide paragraph no. 14 and 15 of its order decision of the different High Courts vide paragraph no. 14 and 15 of its order which read as under: “From the aforesaid discussio “From the aforesaid discussion it can be seen that the line of reasoning of the n 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 exp levy penalty in order to enable him to explain as to why it should not be done. lain 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 Hon’ble Bombay High Court and P being subordinate to the Hon’ble Bombay High Court and Patna High Court are atna 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, there are two views on the issue, Tribunal in other jurisdictions are concerned, there are two views on the issue, Tribunal in other jurisdictions are concerned, there 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 position that where High Court in the case of Smt. Kaushalya. It is settled legal position that where High Court in the case of Smt. Kaushalya. It is settled legal position that where two views are available on an issue, the view favourable to the assessee has to be vailable on an issue, the view favourable to the assessee has to be vailable 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 We have already observed that the show cause notice issued in the present case 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 notice u/s 274 of the Act do income. The show cause notice u/s 274 of the Act does not strike out the es 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 the earlier part of this order based on the decisions referred to in the earlier part of this order 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 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.”

4. In our opinion, the decision rendered by the Coordinate Bench in the case of In our opinion, the decision rendered by the Coordinate Bench in the case of In our opinion, the decision rendered by the Coordinate Bench in the case of Jeetmal Choraria vs ACIT (supra) (supra) is squarely applicable in the present case and is squarely applicable in the present case and even the Ld. DR has not disputed this DR has not disputed this aspect of the matter. We, therefore, . We, therefore, respectfully following the said decision of the Coordinate Bench the said decision of the Coordinate Bench the said decision of the Coordinate Bench quash the impugned penalty imposed by the penalty imposed by the Assessing Officer under section 271(1)(c) nder section 271(1)(c) of the Act and confirmed by the Ld. CIT(A). and confirmed by the Ld. CIT(A).

Assessment Year: 2014-15 Shilpa Bihari 5. In the result, appeal of the assessee In the result, appeal of the assessee is allowed.

Kolkata, the Kolkata, the 25th day of October, 2019. Sd/- Sd/- [P.M. Jagtap] [Aby T. Varkey] Aby T. Varkey] Vice President Judicial Member Judicial Member Dated : 25.10.2019 {SC SPS} Copy of the order forwarded to: opy of the order forwarded to: 1. Shilpa Bihari C/o S.N. Ghosh & Associates, Advocates C/o S.N. Ghosh & Associates, Advocates ‘Seben Brothers’ Lodge’ P.O. Buroshibtala P.S. Chinsurah Dist. Hooghly West Bengal – 712 105 2. Income Tax Officer, Ward-23(2), Hooghly 23(2), Hooghly