PRINCE CONSULTANCY P. LTD.,MUMBAI vs. DCIT - 13(1)(2), MUMBAI

Per Jason P. Boaz, A.M.

This appeal by the assessee is directed against the order of the CIT(A)- 21, Mumbai dated 12.08.2016 confirming the levy of penalty of `16,20,000/- under section 271(1)(c) of the Income Tax Act, 1961 (in short 'the Act') for A.Y. 2012-13. 2. The facts of the case, briefly, are as under: - 2.1 The assessee, a company engaged in the business of providing consultancy services, filed its return of income for A.Y. 2012-13 on 27.10.2012 declaring income of `2,89,22,458/-/ The return was processed under section 143(1) of the Act and the case was subsequently taken up for scrutiny. The assessment was completed under section 143(3) of the Act vide order dated 11.03.2015, wherein the income of the assessee was determined at `3,39,22,460/- due to restriction of the assessee’s claim for exemption under section 45EC of the Act to the extent of `50 lakhs out of the claim of `1 crore, by disallowing the exemption claimed for the balance `50 lakhs, the investment being made after the expiry of six months from

2 ITA No. 6068/Mum/2016 M/s. Prince Consultancy P. Ltd. the date of transfer of the property as prescribed under section 54EC of the Act. Penalty proceedings under section 274 r.w.s. 271(1)(c) of the Act was initiated simultaneously. 2.2 In response to the show cause notice issued by the Assessing Officer (AO) in penalty proceedings the assessee submitted that it had a bona fide belief that the time period for making the claim for exemption under section 54EC is in order and since none of the details of investment furnished were found to be false, it was requested that the penalty proceedings be dropped. The AO, however, rejected the assessee’s contentions, as he was of the view that the assessee had made an excessive claim of exemption under section 54EC of the Act to the extent of `50 lakhs and therefore levied penalty of `16.20 lakhs under section 271(1)(c) of the Act vide order dated 23.09.2015. On appeal, the learned CIT(A) dismissed the assessee’s appeal vide the impugned order dated 12.08.2016; holding that the assessee’s claim for exemption under section 54EC of the Act is false and has no legal basis and therefore in terms of Explanation 1 to section 271(1)(c) of the Act is deemed to represent income in respect of which particulars have been concealed. 3. Aggrieved by the order of the CIT(A)-21, Mumbai upholding the levy of penalty of `16.20 lakhs under section 271(1)(c) of the Act for A.Y. 2012- 13, the assessee has preferred this appeal raising the following grounds: - “(1) Both the lower authorities have recorded their findings to disallow the claim of s.54EC that the deduction was disallowed for not observing the time duration while making the investments. It is urged that there is factual error in recording the date of investments which has significance while interpreting the deduction and the penalty provision. (2) Both the lower authorities i.e.AO and ld.CIT(A) have respectively erred to levy and confirm the penalty as it is without taking cognizance of facts on record and submission made to the show cause issued during the penalty proceeding. It is urged that both the authorities have failed to interpret s.54EC as well as 271(1)(c) in the true spirit of the law and hence, levy of penalty is without application of mind and hence, may be ordered to delete the same. (3) It is urged that the penalty levied/confirmed is without ascertaining the charge of levy, despite the submission was

3 ITA No. 6068/Mum/2016 M/s. Prince Consultancy P. Ltd. made thereto to the AO, hence, the proceeding is without authority of the law. (4) Both the authorities have failed to appreciate that the levy and confirmation of penalty is merely a technical breach of the provision, thus, the case is truly covered by the "doctrine of substantial compliance", under the circumstances the levy of penalty and confirming the same is case of non application of mind, and hence, it is urged to quash the penalty order. (5) Without prejudice to the aforesaid, it is urged that under the facts and examining the deductions provision under the head capital gains vis-a-vis s.54EC and corroborative evidence of investment made, and hence, the case falls within the four corners of reasonable cause in view of s.273B and hence the case may be considered in view of s.273B to delete the penalty levied and confirmed. (6) Appellant craves leave to add, alter, amend, or withdraw to the aforesaid ground of appeal.” 4.1 In the course of appellate proceedings before us, the assessee filed the following additional ground of appeal: - “That the penalty initiated, levied and confirmed is without mandatory satisfaction on its charge as to concealment of income or filing of inaccurate particulars of income makes the penalty order without authority of the law and hence, this order may be held as bad in law being void ab initio.” 4.1.1 Alongwith this additional ground (supra), the assessee has also pleaded that the Bench consider admission of this ground for adjudication since it is a legal ground of jurisdiction which goes to the root of the proceedings, facts of which are already available on record. Reliance in this regard was placed on the decision of the Hon'ble Apex Court in the case of NTPC Ltd. vs. CIT (229 ITR 383 (SC). Learned D.R. for Revenue opposed admission of this additional ground. 4.1.2 We have heard the rival contentions on the issue of admission of the additional ground (supra). We find that since the issue raised therein is a legal one pertaining to the issue of jurisdiction which goes to the very root of the matter and all the relevant facts in this regard are already available on record, we, therefore following the ratio of the decision of the Hon'ble Apex Court in the case of NTPC Ltd. (supra) admit the additional ground raised by the assessee for consideration/adjudication in this appeal.

4 ITA No. 6068/Mum/2016 M/s. Prince Consultancy P. Ltd. 4.2 The learned A.R. of the assessee at the outset raised the issue in the additional ground (supra) challenging the validity of the notice issued under section 274 r.w.s. 271 of the Act dated 11.03.2015. According to the learned A.R., the AO has issued this notice without specifying the default committed by the assessee for which penalty proceedings under section 271(1)(c) of the Act are initiated (copy of notice dated 11.03.2015 is placed on record); i.e. whether for concealment of particulars of income or for furnishing of inaccurate particulars of income. It is submitted that a perusal of the said notice would evidence total non-application of mind on the part of the AO, since he has neither deleted the inappropriate words/portions of the notice, whereby it is not clear whether penalty is sought to be levied under section 271(1)(c) or the Act; for concealment of particulars of income or furnishing of inaccurate particulars of income. It is contended that the said penalty proceedings seem to have been initiated and levied on all possible grounds. He submitted that various courts have held that non specification of the specific charge will vitiate the penalty proceedings, i.e. the assessee should be appraised of the specific reason/ charge for which penalty under section 271(1)(c) of the Act is to be levied. In this regard, the learned A.R. of the assessee placed reliance on the decision of the Coordinate Bench of the Tribunal in the case of Dr. Sarita Milind Davare in ITA No. 2187/Mum/2014 dated 21.12.2016 wherein after, inter alia, considering the decisions of the Hon'ble Bombay High Court in the case of Smt. B. Kaushalya and Others (216 ITR 660) and the decisions of the Hon'ble Apex Court in Dilip N. Shroff (291 ITR 519) (SC), Dharmendra Textile Processors (306 ITR 277) (SC) and Reliance Petro Products P. Ltd. ((322 ITR 158) (SC) and of the Hon'ble Karnataka high Court in the case of Manjunatha Cotton and Ginning Factory (2013) 359 ITR 565 (Kar) the Bench has held that since the AO in that case had not specified in the said notice under section 274 r.w.s. 271 of the Act, the limb under which the penalty is to be levied, the assessee has not been appraised of any charge for which the penalty proceedings has been initiated and therefore the said notice dated 11.03.2015 issued under section 274 r.w.s. 271 of the Act of initiating penalty proceedings under section 271(1)(c) of the Act is invalid and bad in law.

5 ITA No. 6068/Mum/2016 M/s. Prince Consultancy P. Ltd.

4.3 Per contra, the learned D.R. submitted that the provisions of section 274 of the Act stipulate that the assessee should be afforded an opportunity of being heard before penalty is imposed. According to the learned D.R., in the case on hand, the assessee has been provided with an opportunity of being heard and had also participated in the penalty proceedings and therefore the deficiencies, if any, in the penalty proceedings is automatically cured by the provisions of section 292B/292BB of the Act. Reliance was placed on the decision of the Hon'ble Bombay High Court in the case of Smt. Kaushalya and Others (216 ITR 660) submitting that the Hon'ble Court has held that mere mistake in the language used or mere non-striking of the inappropriate portion cannot by itself invalidate the notice. 4.4 In rejoinder, the learned A.R. contends that in the case on hand, the AO issued the said notice dated 11.03.2015 without indicating the limb of section 271(1)(c) that the penalty proceedings were initiated. Since the matter raised in this ground goes to the very root of the matter of the initiation penalty proceedings under section 271(1)(c) of the Act, the same cannot be cured by the provisions of section 292B/292BB of the Act. In support of this proportion, reliance was placed on the decision rendered by the ITAT Bangalore Bench in the case of K. Prakash Shetty vs. ACIT in ITA Nos. 265 to 267/Bang/2014 dated 05.06.2014. 4.5.1 We have heard the rival contentions and perused and carefully considered the material on record; including the judicial pronouncements, cited. The issue for consideration before us is to examine whether or not penalty under section 271(1)(c) of the Act is exigible in the facts and circumstances of the case on hand. In our considered view, penalty proceedings under section 271(1)(c) of the Act can be initiated only if the AO in the course of proceedings under the Act is satisfied that any person has ‘concealed particulars of income’ or has ‘furnished inaccurate particulars’ of income.

6 ITA No. 6068/Mum/2016 M/s. Prince Consultancy P. Ltd. 4.5.2 In this regard, for the sake of convenience, a scanned copy of the said notice dated 11.03.2015 issued under section 274 r.w.s. 271 of the Act is extracted below: - “NOTICE UNDER SECTION 274 READ WITH SECTION 271 OF THE INCOME-TAX ACT, 1961. Penalty u/s. 271(1)(c) Office of the PEN/32/PG.31 Dy.Commissioner of Income Tax- i 3(1)(2) Room No. 218, 2'' floor, 2014-05 Aayakar Bhavan, Mumbai - 20.

PAN: AAFCP8573K Date: 11-03-2015 To, The Principal Officer, M/S PRINCE CONSULTANCY PVT. LTD., 1203, EMP 48, EVERSHINE HALLEY, THAKUR VILLAGE, KANDIVALI (EAST), MUMBAI - 400 101.

Whereas in the course of proceeding before me for the assessment year 2012-13 it appears to me that you: - • have without reasonable cause failed to furnish me return of income which you were required to furnish by a notice given under section 22(1)/22(2) 34 of the Indian Income-tax Act, 1922 or which you were required to furnish under section 139(1) or by a notice given under section 139(2)/148 of the Income Tax Act, 1961, No ___________________ dated ____________________ or have without reasonable cause failed to furnish it within the time allowed and the manner required by the said section 139(1) or by such notice. • have without reasonable cause failed to comply with a notice under section 22(4)/23(2) of the Indian Income-tax Act, 1922 or under section 142(1)/143(2) of the Income Tax Act, 1961. • have concealed the particulars of your income or _____________ furnished inaccurate particulars of such income. You are hereby requested to appear before me with in SEVEN DAYS from the receipt of this order and how cause why an order imposing a penalty on you should not be made under section 271 of the Income-tax Act, 1961. If you do not wish to avail yourself of this opportunity of being heard in person or through authorized representative you may show cause in writing on or before the said

7 ITA No. 6068/Mum/2016 M/s. Prince Consultancy P. Ltd. date which will be considered before any such order is made under section 271(1)(c).

Seal Sd/- (ALOK SINGH) Dy. Commissioner of Income Tax-13(1)(2) Mumbai” A careful perusal of the said notice dated 11.03.2015 (supra) would show that it could have been issued for either failure to furnish return of income under section 139(1)/139(2)/148 of the Act; or failure to comply with notice issued under section 142(1)/143(2) of the Act or for concealment of particulars of income or furnishing inaccurate particulars of income. In our view there should not be any doubt about which of the two limbs of section 271(1)(c) of the Act penalty is sought to be levied, viz. (a) concealment of particulars of income or (b) furnishing of inaccurate particulars of income. In the said notice dated 11.03.2014 (supra), it is clearly evident that the AO has not specified as to which of the two limbs of section 271(1)(c) penalty proceedings were initiated. 4.5.3 The expression ‘concealed the particulars of income’ and ‘furnished inaccurate particulars of income’, have not been defined, but refer to different acts on the part of the assessee. The Hon'ble Apex Court in the case of Dilip N. Shroff vs. JCIT (291 ITR 519 (SC) on the issue of imposition of penalty under section 271(1)(c) of the Act at paragraphs 95 to 97 thereof has held/observed as under: - “It is of some significance that in the standard proforma used by the AO in issuing a notice despite the fact that the same postulates that inappropriate words and paras were to be deleted, but the same had not been done. Thus, the AO himself was not sure as to whether he had proceeded on the basis that the assessee had concealed his income or he had furnished inaccurate particulars. Even before us, the learned Additional Solicitor General while placing the order of assessment laid emphasis that he had dealt with both the situations. The impugned order, therefore, suffers from non-application of mind. It was also bound to comply with the principles of natural justice. [See Malabar Industrial Co. Ltd. vs. CIT (2000) 159 CTR (SC) 1 : (2000) 2 SCC 718].”

8 ITA No. 6068/Mum/2016 M/s. Prince Consultancy P. Ltd. On a perusal of the notice issued under section 274 r.w.s. 271 of the Act for initiation of penalty proceedings under section 271(1)(c) of the Act in the case on hand, we find that in the standard proforma (ITNS-29) used by the AO for issuing the said notice, the AO himself is not certain as to whether he has to proceed on the basis that the assessee has concealed his income or had furnished inaccurate particulars of its income. 4.5.4 The Hon'ble Apex Court in the case of CIT vs. Reliance Petroproducts P. Ltd. (2010) 322 ITR 158 (SC), while referring to its decisions in the case of Dilip N. Shroff vs. JCIT (2007) 291 ITR 519 and UOI vs. Dharmendra Textile Processors (2008) 306 ITR 277, in para 9 of its order has observed and clarified that the basic reason why the decision in Dilip N. Shroff (supra) was overruled by Dharmendra Textile Procesors (supra) was only to the effect that mens rea was not to be considered an essential ingredient for levy of penalty under section 271(1)(c) of the Act. No fault, however, was found with the reasoning in the decision of Dilip Shroff. At para 9 of the order in Reliance Petroproducts P. Ltd. (supra), their Lordships held/clarified the position as under: - “Therefore, it is obvious that it must be shown that the conditions under section 271(1)(c) must exist before the penalty is imposed. There can be no dispute that everything would depend upon the return filed because that is the only document, where the assessee can furnish the particulars of his income. When such particulars are found to be inaccurate, the liability would arise. In Dilip N. Shroff Vs. Joint CIT [2007) 6 SCC 329, this court explained the terms "concealment of income" and "furnishing inaccurate particulars". The court went on to hold therein that in order to attract the penalty under section 271(1)(c), mens rea was necessary, as according to the court, the word "inaccurate" signified a deliberate act or omission on behalf of the assessee. It went on to hold that clause (iii) of section 271(1)(c) provided for a discretionary jurisdiction upon the assessing authority, inasmuch as the amount of penalty could not be less than the amount of tax sought to be evaded by reason of such concealment of particulars of income, but it may not exceed three times thereof. It was pointed out that the term "inaccurate particulars" was not defined anywhere in the Act and, therefore, it was held that furnishing of an assessment of the value of the property may not by itself be furnishing inaccurate particulars. It was further held that the Assessing Officer must be found to have failed to prove that his explanation is not only not bona fide but all the facts relating to the same and material to the computation of his income were not disclosed by him. It was then held that the explanation

9 ITA No. 6068/Mum/2016 M/s. Prince Consultancy P. Ltd. must be preceded by a finding as to how and in what manner, the assessee had furnished the particulars of his income. The court ultimately went on to hold that the element of mens rea was essential. It was only on the point of mens rea that the judgment in Dilip N. Shroff Vs. Joint CIT was upset. In Union of India Vs. Dharamendra Textile Processors, after quoting from section 271 extensively and also considering section 271(1)(c), the court came to the conclusion that since section 271(1)(c) indicated the element of strict liability on the assessee for the concealment or for giving inaccurate particulars while filing return, there was no necessity of mens rea. The court went on to hold that the objective behind the enactment of section 271(1)(c) read with Explanations indicated with the said section was for providing remedy for loss of revenue and such a penalty was a civil liability and, therefore, wilful concealment is not an essential ingredient for attracting civil liability as was the case in the matter of prosecution under section 276C of the Act. The basic reason why decision in Dilip N. Shroff Vs. Joint CIT was overruled by this court in Union of India Vs. Dharamendra Textile Processors, was that according to this court the effect and difference between section 271(1)(c) and section 276C of the Act was lost sight of in the case of Dilip N. Shroff Vs. Joint CIT However, it must be pointed out that in Union of India Vs. Dharamendra Textile Processors, no fault was found with the reasoning in the decision in Dilip N. Shroff Vs. Joint CIT, where the court explained the meaning of the terms "conceal" and "inaccurate". It was only the ultimate inference in Dilip N. Shroff Vs. Joint CIT to the effect that mens rea was an essential ingredient for the penalty under section 271(1)(c) that the decision in Dilip N. Shroff Vs. Joint CIT was overruled.” 4.5.5 In the above view of the matter, the finding rendered by the Hon'ble Apex Court in the case of Dilip N. Shroff (supra); in respect of holding that ‘inappropriate words’ and ‘paragraphs’ in the standard proforma of the notice issued under section 274 r.w.s. 271 of the Act as used by the AO were required to be deleted and the same not having been done, the impugned notice issued on 11.03.2015 for assessment year 2012-13; then the fact the impugned notice/order suffers from non-application of mind, still holds good and is intact. This legal position has also been reiterated by the Hon'ble Karnataka High Court in the case of CIT vs. Manjunatha Cotton & Ginning Factory (2013) 359 ITR 565 (Kar) and which has also not been interfered with by the Hon'ble Apex Court on the appeal filed against it by Revenue. Before us, no contrary judgement of the Hon'ble Apex Court has been cited or referred.

10 ITA No. 6068/Mum/2016 M/s. Prince Consultancy P. Ltd. 4.5.6 In the case of Dr. Sarita Milind Davare in ITA Nos. 2187 & 1789/Mum/2014 dated 21.12.2016 the Coordinate Bench of the Tribunal considered the decisions of the Hon'ble Bombay High Court in the case of B. Kaushalya & Others (supra) alongwith the decision of the Hon'ble Apex Court in the case of Dilip N. Shroff (supra), and Reliance Petro Products P. Ltd. (supra) which made it clear that there should be application of mind by the AO while issuing notice under section 274 r.w.s. 271 of the Act for initiation of penalty proceedings under section 271(1)(c) of the Act. In its order the Coordinate Bench at paras 11 & 12 have held as under: - “11. Hence, we are of the view that the application of mind on the part of the assessing officer at the time of issuing notice for initiation of penalty is a mandatory requirement and the non-application of mind would vitiate the penalty proceedings. We notice that the Hon’ble Bombay High Court has also expressed identical view in the case of Smt. Kaushalya and Others (supra), on which the revenue has placed heavy reliance. In that case also, it was contended that the AO has not indicated the appropriate charge for which the penalty proceedings were initiated. The Hon’ble Bombay High Court has expressed the following view:- “The issuance of 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. Mere mistake in the language used or mere non-striking inaccurate portion cannot by itself invalidate the notice. The entire factual background would fall for consideration in the matter and non one aspect would be decisive. In this context, useful reference may be made to the following observation in the case of CIT Vs. Mithila Motors (P) Ltd (1984)(149 ITR 751)(Patna) (head note): “Under section 274 of the Income tax Act, 1961, all that is required is that the assessee should be given an opportunity to show cause. No statutory notice has been prescribed in this behalf. Hence, it is sufficient if the assessee was aware of the charges he had to meet and was given an opportunity of being heard. A mistake in the notice would not invalidate penalty proceedings.” The Hon’ble Bombay High Court, thereafter, considered various decisions relied upon by the parties and came to the conclusion that there should be application of mind on the part of assessing officer. For the sake of convenience, we extract below the relevant observations made by Hon’ble Bombay High Court. “11. The case of CIT v. Lakhdhir Lalji [1972] 85 ITR 77 (Guj) is the other decision upon which the Tribunal has placed reliance.

11 ITA No. 6068/Mum/2016 M/s. Prince Consultancy P. Ltd. In that case a notice under section 274 was issued on the footing of concealment of income by suppression of sales whereas the penalty was levied on the footing that there was furnishing of inaccurate particulars of income since the stock at the closing of the year was undervalued. The penalty was quashed upon a view that the very basis for the penalty proceedings had disappeared when it was held that there was no suppression of income by the assessee. Thus, it would be seen that the ratio of that decision cannot be applied to this case. 12. The last decision relied upon is the case of N. N. Subramania Iyer v. Union of India [1974] 97 ITR 228 (Ker). The following passage from the said decision would demonstrate how entirely different the background of that case was and, therefore, the ratio of that decision also could not be applied (at page 231) : "The penalty notice, exhibit P-2, is illegal on the face of it. It is in a printed form, which comprehends all possible grounds on which a penalty can be imposed under section 18(1) of the Wealth-tax Act. The notice has not struck off any one of those grounds; and there is no indication for what contravention the petitioner was called upon to show cause why a penalty should not be imposed. Even in the counter-affidavit filed by the second respondent, he has not stated for what specific violation he issued it. It is not that it would have saved his action. Apparently, exhibit P-2 is a whimsical notice issued to an assessee without intending anything." 13. No doubt, there can exist a case where vagueness and ambiguity in the notice can demonstrate non-application of mind by the authority and/or ultimate prejudice to the right of opportunity of hearing contemplated under section 274. Take for example; the notice dated March 28, 1972, for the assessment year 1967-68. This show-cause notice was issued even before the assessment order was made. The assessee had no knowledge of the exact charge of the Department against him. In the notice, not only there is use of the word "or" between the two groups of charges but there is use of the word "deliberately". The word "deliberately" did not exist in section 271(1)(c) when the notice was issued. It is worthwhile recalling that the said word was omitted by the Finance Act, 1964, with effect from April 1, 1964, and the Explanation was added. The notice clearly demonstrated non-application of mind on the part of the Inspecting Assistant Commissioner. The vagueness and ambiguity in the notice had also prejudiced the right of reasonable opportunity of the assessee since he did not know what exact charges he had to face. In this background, quashing of the penalty proceedings for the assessment year 1967-68 seems to be fully justified.”

12 ITA No. 6068/Mum/2016 M/s. Prince Consultancy P. Ltd. 12. A combined reading of the decision rendered by Hon’ble Bombay High Court in the case of Smt. B Kaushalya and Others (supra) and the decision rendered by Hon’ble Supreme Court in the case of Dilip N Shroff (supra) would make it clear that there should be application of mind on the part of the AO at the time of issuing notice. In the case of Lakhdir Lalji (supra), the AO issued notice u/s 274 for concealment of particulars of income but levied penalty for furnishing inaccurate particulars of income. The Hon’ble Gujarat High Court quashed the penalty since the basis for the penalty proceedings disappeared when it was held that there was no suppression of income. The Hon’ble Kerala High Court has struck down the penalty imposed in the case of N.N.Subramania Iyer Vs. Union of India (supra), when there is no indication in the notice for what contravention the petitioner was called upon to show cause why a penalty should not be imposed. In the instant case, the AO did not specify the charge for which penalty proceedings were initiated and further he has issued a notice meant for calling the assessee to furnish the return of income. Hence, in the instant case, the assessing officer did not specify the charge for which the penalty proceedings were initiated and also issued an incorrect notice. Both the acts of the AO, in our view, clearly show that the AO did not apply his mind when he issued notice to the assessee and he was not sure as to what purpose the notice was issued. The Hon’ble Bombay High Court has discussed about non-application of mind in the case of Kaushalya (supra) and observed as under:- “….The notice clearly demonstrated non-application of mind on the part of the Inspecting Assistant Commissioner. The vagueness and ambiguity in the notice had also prejudiced the right of reasonable opportunity of the assessee since he did not know what exact charge he had to face. In this back ground, quashing of the penalty proceedings for the assessment year 1967-68 seems to be fully justified.” In the instant case also, we are of the view that the AO has issued a notice, that too incorrect one, in a routine manner. Further the notice did not specify the charge for which the penalty notice was issued. Hence, in our view, the AO has failed to apply his mind at the time of issuing penalty notice to the assessee.” 4.5.7 One of the contentions of the learned D.R. for Revenue was that since the assessee had participated in the penalty proceedings, the error on the part of the AO is said notice dated 11.03.2015 would be cured in view of the provisions of sections 291B/292BB of the Act. The Coordinate Bench in the case of Dr, Sarita Milind Davare (supra) at para 13 of its order held that: -

13 ITA No. 6068/Mum/2016 M/s. Prince Consultancy P. Ltd. “13. ..... the provisions of sec. 292BB would not come to the rescue of the revenue, when the notice was not in substance and effect in conformity with or according to the intent and purpose of the Act. In our view, the notice issued by the AO, which is extracted above, was not in substance and effect in conformity with or according to the intent and purpose of the Act, since the AO did not specify the charge for which penalty proceedings were initiated and further there was non-application of mind on the part of the AO.” 4.5.8 In view of the facts and circumstances of the case as discussed from para 4.2 to 4.5.7 of this order (supra), we are of the considered opinion that the assessee should succeed on this legal issue. We, therefore, while taking into consideration the facts and circumstances of the case on hand and applying the ratio and deriving support from the aforesaid decisions of the Hon'ble Apex Court (discussed supra), hold that the notice dated 11.03.2015 issued for initiation of penalty proceedings under section 274 r.w.s. 271 of the Act for levy of penalty under section 271(1)(c) of the Act for A.Y. 2012-13 is defective and issued without application of mind and is therefore invalid and consequently the orders levying penalty under section 271(1)(c) of the Act for A.Y. 2012-13 is also invalid and liable to be cancelled. In this view of the matter, the additional ground raised by the assessee for A.Y. 2012-13 is allowed. 5. Since the levy of penalty under section 271(1)(c) of the Act for A.Y. 2012-13 has been held to be invalid and the assessee’s grievance has been addressed by disposal of additional ground, the other grounds, S. Nos. 1 to 6 raised by the assessee against the merits of levy of penalty under section 271(1)(c) of the Act require no adjudication at this stage. 6. In the result, the assessee’s appeal for A.Y. 2012-13 is allowed. Order pronounced in the open court on 13th January, 2017. Sd/- Sd/- (Ramlal Negi) (Jason P. Boaz) Judicial Member Accountant Member

Mumbai, Dated: 13th January, 2017

14 ITA No. 6068/Mum/2016 M/s. Prince Consultancy P. Ltd. Copy to:

//True Copy// Assistant Registrar ITAT, Mumbai Benches, Mumbai n.p.