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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR.
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
The instant appeal was filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeal), Bhatinda, [in brevity the CIT(A)] bearing appeal no. 98/16-17, order passed u/S 250(6) of the Income Tax Act, 1961 {in brevity the Act} for A.Y. 2009-10. The said appeal was arising out from the order of the ld. ITO Ward-2(4), Abohar (in brevity the AO) order passed u/s 271(1)(c) dated of order 30.08.2016.
The brief fact is that the order was made u/s 271(1)(c) of the Act adequate basis the tax was levied and the total evaded tax by the assessee Rs.3,38,517/-. The ld. AO initiated penalty u/s 271(1)(c) and levied penalty on basis of 100% of tax amount to Rs. 73,645/-. The aggrieved assessee filed an appeal before the ld. CIT(A) and the ld. CIT(A) uphold the order of the ld.AO. The ld. Counsel filed a written submission on dated 24/06/2022. The main grievance was that the notice initiated by the ld. AO was not determined the allegation of the assessee whether it is concealed income or furnished inaccurate particular of income. The ld. Counsel so enclosed the notice issued by the ld AO u/s 274/271(1)(c) of the Act vide notice dated 18.02.2016 which is reproduced hereunder:
“Notice under section 274 Read With Section 271 of the Income Tax Act, 1961. PAN: AZGPK 3429G Office of the Income Tax Officer, Ward II(4), Abohar Dated, Abohar, the 18th Feb. 2016 To Sh. Krishan Kumar Sharma S/o Amarnath Sharma Basti Hazoor Singh, Fazilka Whereas in the course of proceedings before me for the assessment year 2009-10 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 on which you were required to furnish under section l39(1) or by a notice given under section 139(2)/148 of the income tax act, 1961, No.;____________dated_______or required by the said section 139(1) or by such notice.
*Have without reasonable cause failed to comply with a notice under 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 on 29.02.2016 at 11:00 A.M., and show cause why an order imposing a penalty on you should not be made under section 271(1)(c) 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 date which will be considered before any such order is made under section 27l.
(BRIJ LAL) Income Tax Officer Ward-II(4), Abohar
The ld. DR vehemently argued and relied on the order of the ld. CIT(A). The ld. DR further mentioned that in the assessment order passed u/s 143(3) dated 17.02.2016 by the ld. AO. The ld. AO specifically mentioned that the penalty proceedings u/s 271(1)(c) is initiated for final opportunity of the assessee. In the assessment order the conclusion was made as ‘for concealing particulars of his income and furnished inaccurate particulars of income’.
We heard the rival submission and considered the documents available in record. This particular notice it is a self-defective and the ld. AO did not mention the nature of concealment in the notice issued u/s 274/271(1)(c). The counsel laid down that in the absence of such specific notice, the notice would be invalid as held in various judicial pronouncements including the decision of Hon’ble Karnataka High Court in CIT V/s SAS’s Emerald Meadows (73 Taxmann.com 241) against which Special Leave Petition (SLP) filed by the department stood dismissed by Hon’ble Supreme Court which is reported as 73 Taxmann.com 248.
The notice u/s 274/271(1)(c) of the Act is not carrying the specific limb. Therefore, this is a case where both the parts of the offences i.e., concealment of income as well as furnishing of inaccurate particulars of income were involved. The decision of Jaipur Tribunal (Third Member) in the case of Grass Field Farms and Resorts P. Ltd. (159 ITD 31) was referred to confirm the impugned penalty.
Finally, respectfully following the binding judicial precedents as cited aforesaid, we are of the considered opinion that the impugned penalty is not sustainable on legal grounds. Hence, by deleting the same, we allow the appeal of the assessee.
In the result the appeal of the assessee is allowed.