TaxTMI 
TaxTMI 
2019 (11) TMI 521
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....common, clubbed and heard together and disposed of by way of this consolidated order. 2. There is a delay of 118 days in filing the appeals. The assessee has explained the delay by filing the affidavits along with medical certificate as under:- "1. The above appeal is instituted against the order dt.08.11.2018 of the learned Commissioner of Income Tax (Appeals), Vijayawada. The order was received on 11.12.2018. As such, the appeal against the said order ought to have been filed on or before 09.02.2019. However, the appeal was filed by the CPA holder (petitioner) on 07.06.2019 and as such there was a delay of 118 days in filing the appeal. 2. The appellant is a NRI residing in USA. The appellant is represented by t....
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.... Subsequently, penalty notice u/sec. 274 r.w.s. 271 of the Act, dated 07/01/2009 was issued and thereafter penalty order u/sec. 271(1)(c) was passed on 26/02/2016. 3. On appeal, ld. CIT(A) confirmed the penalty order passed by the Assessing Officer. 4. Aggrieved, the assessee has raised the following additional ground before the Tribunal. "Whether on the facts and in the circumstances of the case, the order dt 26-02-2016 levying penalty u/s 271(1)(c) is liable to be cancelled in as much as the notice dt.07-01-2009 initiating the penalty proceedings did not specify clearly as to whether the penalty proceedings were initiated for concealment of particulars of income or for furnishing inaccurate particulars of income." 5. Lea....
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....tted. 9. Now coming to the validity of the notice issued by the Assessing Officer dated 07/01/2009. In this context, learned counsel for the assessee has submitted that the notice issued by the Assessing Officer is not clear whether notice issued under section 271(1)(c) is for concealment of income or furnished inaccurate particulars. Therefore, the notice issued by the Assessing Officer is not a valid notice in the light of the latest judgment of the Hon'ble Supreme Court in the case of CIT Vs. SSA‟s Emerald Meadows [(2016) 73 taxman.com 248 (SC)] and also the Hon'ble High Court of Telangana & A.P. in I.T.T.A. No. 684/2016 in Pr.CIT Vs. Smt. Baisetty Revathi, dated 13/07/2017. 10. On the other hand, learned Departmental....
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....am Vs. ITO in ITA No. 388/VIZ/2015, by order dated 06/10/2017 has considered the validity of notice by following the above referred to judgments and held that notice issued by the Assessing Officer is not a valid notice and accordingly quashed. For the sake of convenience, the relevant portion of the order is extracted as under:- 6. We have heard both the parties and perused the material placed on record. In this case, the assessee has not filed the return of income. The department has conducted the survey u/s 133A and completed the assessment u/s 143(3) on total income of Rs. 15,43,041/- and initiated penalty proceedings u/s 271(1)(c). The fact is that long term capital gains for sale of the property have come to the noti....
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.... 271(1)(c) do not exist and that he is not liable to pay the penalty. The Hon‟ble High Court of Karnataka in the case law cited held that the practice of the revenue in sending the printed form where all the grounds mentioned in 271(1)(c) are mentioned would not satisfy the requirement of law when the consequence of the assessee not rebutting the initial presumption is serious in nature and has to pay the penalty ranging from 100% to 300% of the tax liability. As the provisions of section 271(1)(c) have to be strictly construed, the Hon‟ble High court of Karnataka mandated that the notice issued should be set out the grounds which the assessee has to meet specifically, otherwise the principles of natural justice would be offende....
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....ave proper opportunity to put forth his defence. When the proceedings are penal in nature resulting in imposition of penalty ranging from 100% to 300% of the tax liability, the charge must be unequivocal and unambiguous. When the charge is either concealment of particulars of income or furnishing of inaccurate particulars thereof, the revenue must specify as to which one of the two is sought to be pressed into service and cannot be permitted to club both by interjecting an 'or' between the two, as in the present case. This ambiguity in the show-cause notice is further compounded presently by the confused finding of the Assessing Officer that he was satisfied that the assessee was guilty of both. We are therefore of the opin....