TaxTMI 
TaxTMI 
2020 (9) TMI 532
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....16 framed by JCIT, OSD(Central)-1, Indore. 2. The assessee(s) has raised following grounds of appeal; Smt. Rajrani Mittal, ITA No.853/Ind/2019 Assessment Year 2015-16 1.That on the facts and in the circumstances of the case and in law the very initiation of the penalty proceedings through an invalid and defective notice issued u/s 274 r.w.s. 271 AAB in this case is wrong, bad in law and the penalty so levied ought to have been deleted by the Learned CIT(A). 2.That the Ld. CIT(A) erred in not appreciating that the penalty notice issued u/s 274 r.w.s. 271AAB mechanically, mentioning irrelevant and inapplicable charges and not mentioning the charges on which penalty was actually levied, was bad in law and had has led to vitiation of the entire penalty proceedings, therefore, the penalty levied ought to have been deleted in its entirety. 3.That the Learned CIT(A) erred In levying the penalty under clause (c) to section 271AAB(1) @10%, whereas the Learned AO having levied the penalty under clause (a) to section 271AAB(1), clearly indicating that the penalty levied by the AO mechanically and without requisite satisfaction was wrong....
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....eted in its entirety. 3.That the Learned CIT(A) erred In levying the penalty under clause (c) to section 271AAB(1) @10%, whereas the Learned AO having levied the penalty under clause (a) to section 271AAB(1), clearly indicating that the penalty levied by the AO mechanically and without requisite satisfaction was wrong and uncalled for, ought to have been deleted in full. 4.That the Ld. CIT(A) erred in confirming the penalty to the extent of Rs, 8,44,176/- u/s 271AAB. That on the facts and in the circumstances of the case and in law the penalty levied is wrong an uncalled for and prayed to be deleted. 5.That the Ld. CIT(A) erred in confirming the penalty levied u/s 271AAB by the AO on the additional income of Rs. 84,41,755/- offered u/s 132(4) and also offered in the return filed u/s 153A. That on the facts and in the circumstances of the case and in law the penalty levied is uncalled for and bad in law and it is prayed that the penalty very kindly be deleted. 6.That the appellant craves leave to add, to alter, amend, modify, substitute, delete and/or rescind all or any of the grounds of appeal on or before final hearing, if necessity so arises. ....
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....appreciating that the penalty notice issued u/s 274 r.w.s. 271AAB mechanically, mentioning irrelevant and inapplicable charges and not mentioning the charges on which penalty was actually levied, was bad in law and had has led to vitiation of the entire penalty proceedings, therefore, the penalty levied ought to have been deleted in its entirety. 3.That the Learned CIT(A) erred In levying the penalty under clause (c) to section 271AAB(1) @10%, whereas the Learned AO having levied the penalty under clause (a) to section 271AAB(1), clearly indicating that the penalty levied by the AO mechanically and without requisite satisfaction was wrong and uncalled for, ought to have been deleted in full. 4.That the Ld. CIT(A) erred in confirming the penalty to the extent of Rs, 3,64,285/- u/s 271AAB. That on the facts and in the circumstances of the case and in law the penalty levied is wrong an uncalled for and prayed to be deleted. 5.That the Ld. CIT(A) erred in confirming the penalty levied u/s 271AAB by the AO on the additional income of Rs. 36,42,852/- offered u/s 132(4) and also offered in the return filed u/s 153A. That on the facts and in the circumstances of ....
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....he facts and in the circumstances of the case and in law the very initiation of the penalty proceedings through an invalid and defective notice issued u/s 274 r.w.s. 271 AAB in this case is wrong, bad in law and the penalty so levied ought to have been deleted by the Learned CIT(A). 2.That the Ld. CIT(A) erred in not appreciating that the penalty notice issued u/s 274 r.w.s. 271AAB mechanically, mentioning irrelevant and inapplicable charges and not mentioning the charges on which penalty was actually levied, was bad in law and had has led to vitiation of the entire penalty proceedings, therefore, the penalty levied ought to have been deleted in its entirety. 3.That the Learned CIT(A) erred In levying the penalty under clause (c) to section 271AAB(1) @10%, whereas the Learned AO having levied the penalty under clause (a) to section 271AAB(1), clearly indicating that the penalty levied by the AO mechanically and without requisite satisfaction was wrong and uncalled for, ought to have been deleted in full. 4.That the Ld. CIT(A) erred in confirming the penalty to the extent of Rs, 4,57,513/- u/s 271AAB. That on the facts and in the circumstances of the case ....
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....y kindly be deleted. 6.That the appellant craves leave to add, to alter, amend, modify, substitute, delete and/or rescind all or any of the grounds of appeal on or before final hearing, if necessity so arises. 3. As the issues raised in all these appeals are common and all the assessee(s) are related to the same group, therefore the appeals by the assessee(s) and that by the revenue are being taken together for the sake of convenience and brevity. We observe that there are seven appeals by various assessee(s) through ITA No.852 to 858/Ind/2019 and in one case namely Smt. Rajrani Mittal vide ITA No.879/Ind/2019, Revenue has challenged the relief given by Ld. CIT(A) sustaining the penalty u/s 271AAB of the Act @10% as against 30% levied by Ld. A.O. We have summarised the relevant details of all the assesse(s) appeal in the following manner; Name of assessee Assessment Year Date of filing of return of income Undisclosed income adopted by A.O for levying penalty Penalty u/s 271AAB(B) @ 30% Undisclosed income confirmed by CIT(A) for levying penalty u/s 271AAB(A) Penalty u/s 271AAB(1) sustained by CIT @10% Rajrani Mittal 2015-16 31.10.15 33540....
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....e Act dated 18.02.2016. In pursuance to search proceedings, notices under section 153A were issued to the appellant for AY 2010-2011 to AY 2015-2016, which were duly complied by the appellant and return for the year under consideration was filed u/s 153A r.w.s. 139 on 06.06.2016 declaring a total income at Rs. 3,47,20,240/- including the additional income of Rs. 3,35,40,876/- offered as business income which was offered u/s 132(4), which also included Rs. 2,24,00,000/- offered during the course of survey conducted u/s 133A on 01.09.2014. It is also pertinent to mention that the same income which was declared in the return filed u/s 139(1) was reiterated in the return filed u/s 153(A) r.w.s 139. The assessment proceedings were completed by passing a combined assessment order for all these years under section 153A r.w.s. 143(3) dated 30.11.2017. The income for this year was assessed at Rs. 3,47,55,240/- by making anominal adjustment of Rs. 35,000/- to the returned income. The additional income offered of Rs. 3,35,40,876/- was offered as business income and was also assessed as such. Coming back to the present appeal, a notice was served on the appellant requiring to show cause as to ....
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....2012 but before the date on which the Taxation Laws (Second Amendment) Bill, 2016 receives the assent of the President], the assessee shall pay by way of penalty, in addition to tax, if any, payable by him,- (a) a sum computed at the rate of ten per cent of the undisclosed income of the specified previous year, if such assessee- (i) in the course of the search, in a statement under sub-section (4) of section 132, admits the undisclosed income and specifies the manner in which such income has been derived; (ii) substantiates the manner in which the undisclosed income was derived; and (iii) on or before the specified date- (A) pays the tax, together with interest, if any, in respect of the undisclosed income; and (B) furnishes the return of income for the specified previous year declaring such undisclosed income therein; (b) a sum computed at the rate of twenty per cent of the undisclosed income of the specified previous year, if such assessee- (i) in the course of the search, in a statement under sub-section (4) of section 132, does not admit the undisclosed income; and (ii) on or before the specified d....
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....ssessee is liable to penalty under section 271AAB(1)(c) of the Income Tax Act as the addition pertains to 'specified previous year' and the assessee could not specify and substantiate the manner in which the undisclosed income has been derived."Penalty u/s 271AAB could have been levied either under clause (a) or clause (b) or clause (c) of sub-section (1). The specific clause (c) under which the penalty has been levied and also the observation of the Learned AO that the manner of earning income was not specified and substantiated were never communicated to the appellant through the penalty notice issued u/s 274 r.w.s. 271AAB. 1.7. Thus the show cause notice issued u/s 274 is without drawing requisite satisfaction for levy of penalty u/s 271AAB and was akin to a notice which is issued u/s 271(1)(c), where the limbs of section 271(1)(c) were mentioned and the limbs of section 271AAB were not mentioned. Such notice having been issued in mechanical manner, without proper application of mind and without affording proper opportunity to the appellant to rebut the charges is bad in law vitiating the very initiation of the penalty proceedings. 2. Case laws on defective sho....
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....this score also." Though this decision is in context of section 271AAA but squarely applies in context of section 271AAB since both the sections are pari-materia and operate under similar circumstances. 1.9. The appellant also wish to draw support from the various decisions rendered in the context of section 271(1)(c), wherein the penalty proceedings have been held to be not validly initiated as the show cause notice issued u/s 274 was defective as it did not spelled out the ground / charge on which the penalty is sought to be imposed, such as (i) CIT V/s Manjunath Cotton Ginning Factory (2013) 359 ITR 0565 (Karnataka). (ii) CIT V/s SSA'S Emerald Meadows, (2016) 73 taxmann.com 248 (SC). (iii) Pr. CIT V/s Kulwant Singh Bhatia IT No. 9 to 14 of 2018 (MP) 1.10. The appellant further wish to further add that in the case of Kulwant Singh Bhatia (supra), the Honourable High Court of Madhya Pradesh in its latest decision dated 09.05.2018 dismissing the appeals filed by the revenue held in Para 11 of the order "on due consideration of the arguments of the Learned Counsel of the appellant, so also considering the fact that the ground men....
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....lty order on the ground that the notice initiating the penalty is not in accordance with law as no specific charge is mention in the notice. Therefore, the contention of the Learned CIT(A) is not tenable. Further, it is submitted that some case laws relied upon by the appellant though rendered in context of penalties levied u/s 271(1)(c) or u/s 271AAA are equally applicable in respect of penalties levied u/s 271AAB since the show cause notice in all these penalties are issued u/s 274. On a perusal of the show cause notice u/s 274r.w.s. 271AAB issued to the appellant it is amply evident that the Learned AO has issued the notice in a mechanical manner without application of mind mentioning irrelevant and inapplicable charges. No penalty has been levied on the charges mentioned in the show cause notice and the charge on which penalty has been actually levied was not mentioned in the notice. Thus the very initiation of the present penalty proceedings is not in accordance with the law and has led to vitiation of entire penalty proceedings. It is therefore most humbly prayed that the penalty proceedings ought to be quashed and the consequent penalty levied be deleted. ....
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....ness income in the return of income filed u/s 153A. Coming to the penalty proceedings: 2.4. It is submitted that the penalty proceedings are unwarranted on the overall facts of the case as the penalty proceedings were initiated merely on the basis of income offered by the appellant, without bringing anything adverse on record. There is no objection as to the filing of return offering additional income, moreover the income offered as business income was accepted as such. Neither the Investigation Wing nor the Learned AO pointed out any discrepancies or defect in the offering and working of the appellant. The additional income was offered to avoid penal proceedings and to buy peace of mind. 2.5. A perusal of the penalty order will show that the only reason for which the penalty has been levied is the observation of the Ld. AO that the assessee could not specify and substantiate the manner in which the said undisclosed income was derived.(Para 4 of the penalty order). Further in Para 6 it is stated that the assessee was given a chance to explain the manner in which the undisclosed income was derived during the assessment proceedings and it is also s....
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....ncome was offered as business income and the same also stand assessed as business income by the AO is undisputed. During Assessment proceedings (iii) The Learned AO has stated in Para 6 of the penalty order that the appellant was given a chance to explain the manner during the assessment proceedings. The appellant wishes to draw Your Honours kind attention to the questionnaire issued u/s 142(1), which is enclosed at page no. 09 to 16 of the PB.A perusal of item no. A-2 of part A of this questionnaire will show that the appellant was only required to state that whether any voluntary disclosure of income was made u/s 132(4) that too in a prescribed format. Similarly through item no. B-1 to B-5 of part B the appellant was required to explain cash, jewellery etc. These facts substantiate the contention of the appellant that the appellant was never called upon to explain the manner of deriving such income during the assessment proceedings and the observations made by the Learned AO to this effect in the penalty order in Para 6 is factually incorrect. During penalty proceedings (iv) The allegation in the penalty order that the appellant did not explain....
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....the penalty order, imposing vague allegations that the appellant has failed to substantiate the manner in which such income was derived. The Investigation Wing was also satisfied with the explanation provided by the appellant and no objections were raised and no further queries were put during the search proceedings as well as during the assessment proceedings, as evident from the assessment order. Further there were no queries asked at any stage to explain the manner of earning of the income. For the above proposition the appellant places reliance on the following decisions which support the contention of appellant. i. Honb'le Gujarat High Court in case of Principal CIT v/s. Shahlon Silk Mills Pvt. Ltd dated 05.02.2018 wherein also no question was raised by Revenue Authorities while recording the statement about the disclosure of manner in which income was earned, relying on the decisions of the Honourable Gujarat High Court in the case of CIT V/s Mahendra Singh Shah (2008) 299 ITR 305, the penalty levied u/s 271AAA was deleted. ii. Hon'ble ITAT, Ahmedabad in the case of ACIT v. Shreenarayan Sitaram Mundra [(2017) 166 ITD 47 where it was held that where ....
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....manner of earning undisclosed income. v. Honourable ITAT Indore Bench in the case of Shri Tikamchand Garg and others while deciding the issue of levy of penalty u/s 271AAA wherein such penalty was levied solely on the issue that the assessees have not disclosed the manner or method of earning such income, discussed the issue elaborately wherein the observations and the operating part is in Para 7 to 7.6, deleted the penalties after discussing the decisions of various High Courts and ITATs concluded in Para 7.6 that: "In view of the above facts of the present case where from it is evident that during the course of search proceedings the authorized officer of the department has not raised any specific query regarding manner in which the undisclosed income has been derived and on the contrary the assessee has explained that undisclosed income is being surrendered in the basis of loose papers, discrepancies found in seized materials and valuables found during search. We thus respectfully following the above decisions of Honourable Allahabad High Court and Honourable Gujarat High Court and coordinate bench of various tribunal as discussed above hold that in absence of ....
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....come, the relevant facts are as under:- (i) It is reiterated that the amount of Rs. 2,24,00,000/- was offered in the course of survey proceedings u/s 133A carried out on 01.09.2014 prior to the date of search on 04.09.2015. (ii) The said income was already recorded in the books of accounts of the appellant for the year ended on 31.03.2015 prior to the date of search on 04.09.2015. (iii) The said income was also in the knowledge of the department as the same was already offered in the survey before the date of search. (iv) In respect of this income due advance tax of Rs. 72,40,000/- was already paid by the assessee on 13th and 15th September 2014, much prior to the date of search on 04.09.2015. (v) The said income was also deposited in the bank account of the appellant before 31st March 2015 i.e. well before the date of search on 04.09.2015. The documents substantiating the above facts such as the copy of diary which was impounded during the survey u/s 133A on 01.09.2014 and on the basis of which income was offered, copy of the statement of Shri Dinesh Chand Mittal recorded on 01.09.2014, copy of clarification filed after the sur....
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....recorded in the books of accounts. The appellant places reliance on the following judicial pronouncements for this proposition: - i. Hon'ble High Court of Madras in the case of Asstt. CIT v. A R Enterprises (2005) 274 ITR 110 where it was held that Assessee having paid advance tax, income of relevant assessment year could not be treated as undisclosed income in block assessment even though no return was filed till the date of search. ii. Hon'ble High Court Of Gauhati in the case of Dr. (Mrs.) Alaka Goswami v. CIT (2004) 138 Taxman 212/ 268 ITR 178 where it was held that the income disclosed on account of payment of the advance tax cannot be held to be undisclosed income for the purposes of block assessment. The appeals of the assessees are allowed to that extent and the assessment orders would be modified taking the income on payment of advance tax as disclosed income and not as the undisclosed income. iii. Hon'ble High Court of Madras in the case ofCIT v. Kerala Roadways Ltd. [(2010) 322 ITR 609 where it was held that where the return is filed though after search showing income in respect of which advance tax and self- assessment tax has been pa....
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....me u/s 132(4), paid the due taxes along with interest and furnished the return of income declaring such income as business income and also specified the manner in which such income was derived, in any case cannot be roped into the clutches of section 271AAB(1)(c) which prescribes the maximum penalty leviable. For this reason also the penalty levied by the AO upon the appellant under clause (c) to section 271AAB(1) is wrong and uncalled for and prayed to be deleted. Further, the Learned CIT(A) erred in confirming the penalty to the extent of 10% whereas the Learned AO levied the penalty under clause (c) of section 271AAB(1) which itself indicate that the Learned AO levied the penalty in a mechanical manner and without requisite satisfaction. Therefore, the penalty levied by the AO is uncalled for and prayed to be deleted. The penalty u/s 271AAB is neither automatic nor mandatory and is purely discretionary. Considering the overall conduct of the appellant of honouring the offer of additional income in letter and spirit and timely payment of taxes and also considering the cooperation extended during the search proceedings and also during the assess....
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....anner in which income is derived and imposition of penalty on the income offered in the return filed u/s 153A without any queries raised in the search as well as penalty proceedings brings the appellant out of the clutches of the section 271AAB and therefore the order passed and the penalty imposed is wrong, uncalled for and prayed to be deleted. 11. Ld. Departmental representative opposed the submissions and submitted that the assessee has not raised any objection before the authorities below. He further contended that merely a defective notice should not be the reason of quashing the penalty proceedings when the assessee himself has participated into the proceedings. In support Ld. DR relied upon the judgment of Hon'ble Madras High Court rendered in the case of Sundaram Finance Ltd V/s ACIT. 12. We have heard rival contentions and perused the records placed before us and carefully gone through the judgments relied by both the parties. In this bunch of seven appeals filed by various assessee(s) common two issues have been raised. Firstly legal issue challenging the validity of penalty proceedings initiated u/s 271AAB of the Act being bad in law since the notice issued u/s 27....
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.... held by the Honourable High Court that the grounds mentioned in the show cause notice does not satisfies the requirement of law as the notice was not specific. Drawing support from this decision the appellant contended that the present appeal is squarely covered by the proposition rendered by the jurisdictional High Court. After due consideration of the various contentions raised by the appellant, I find that the appellant does not get support from the ratio decided by the Honourable MP High Court as the same was rendered in the context of penalty levied u/s 271(1)(c) and not u/s 271AAB, as in the instant case. I also find that the AO has issued notice u/s 274 r.w.s. 271AAB and therefore, the challenge of the appellant in respect of the initiation of the penalty proceedings under wrong section is not valid. Accordingly this ground of appeal is Dismissed." 14. For adjudicating the legal issue in detail, we first need to look into the penalty notices issued to the assessee(s). It is accepted by both the parties that similar type of notices has been issued u/s 274 r.2.s. 271AAB in all these cases. We are therefore reproducing below the notice issued in the case of Smt. Ra....
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....pra) and after examining the fact find that the facts are verbatim similar wherein defective notice was issued u/s 274 r.w.s. 271AAB of the Act, without specifying the charges for which penalty proceedings were initiated. In other words in the notice issued u/s 274 r.w.s. 271AAB of the Act assessee has not been given an opportunity to offer explanation against the type of penalty to be levied i.e. whether the penalty is to be under Clause (a), (b) or (c) of Section 271AAB. The Tribunal has quashed the penalty proceedings for the defective notice issued u/s 274 r.w.s. 271AAB of the Act observing as follows:- 8. We have heard rival contentions and perused the records placed before us. The legal issue before us is that whether the notice issued u/s 274 r.w.s. 271AAB of the Act suffers from fatal error and technical defect thereby not providing an opportunity to the assessee to plead her case. Since the legal ground goes to be root cause of the issue levying penalty u/s 271AAB of the Act, we in view of the ratio held by the Hon'ble Apex Court in the case of National Thermal Power Company Limited (supra) admit the additional legal ground for adjudication. For levyi....
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.... 275 shall, as far as may be, apply in relation to the penalty referred to in this section. Explanation.-For the purposes of this section,- (a) "specified date" means the due date of furnishing of return of income under sub-section (1) of section 139 or the date on which the period specified in the notice issued under section 153A for furnishing of return of income expires, as the case may be; (b) "specified previous year" means the previous year- (i) which has ended before the date of search, but the date of furnishing the return of income under sub-section (1) of section 139 for such year has not expired before the date of search and the assessee has not furnished the return of income for the previous year before the date of search; or (ii) in which search was conducted; (c) "undisclosed income" means- (i) any income of the specified previous year represented, either wholly or partly, by any money, bullion, jewellery or other valuable article or thing or any entry in the books of account or other documents or transactions found in the course of a search under section 132, which has- (A) not been recorded on o....
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....entioned that penalty u/s 271AAB of the Act may be levied @10/20/ 30% since the assessee falls in Clauses (a)/(b)/(c) of section 271AAB of the Act. He should have further mentioned that as the assessees case falls under clause-c of section 271AAB of the Act, why she should not be visited by penalty @30% of the undisclosed income. Against this charge the assessee should have been given a reasonable opportunity of being heard. 10. Now let us revert back to the fact of the instant case of the assessee and look into as to what is mentioned in the alleged notices issued u/s 274 r.w.s. 271AAB of the Act. Notice is reproduced below; NOTICE UNDER SECTION 274 READ WITH SECTION 271AAB OF THE INCOME TAX ACT, 1961 PAN. ABTPJ0870H OFFICE OF THE Asstt. Commissikoner of Income Tax (Central)-I, Indore Date: 22.03.2016 To Dr. Rajesh Jain, E-63 Saket, Indore-452001 Whereas in the course of proceedings before me for the assessment year 2014-15 it appears to me that you :- *Have without reasonable cause failed to furnish me return of income with you were required to furnish by a notice given under section 22(1)/22(2)/3....
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....ll negate the very purpose of natural justice. Hon'ble Apex Court in the case of Dilip N Shraf 161 Taxmann 218 held that "the quasi criminal proceedings u/s 271(1)(c) of the Act ought to comply with the principles of natural justice". 13. In the case of DCIT V/s R. Elangovan Ltd (supra) , Co-ordinate Bench, Chennai while dealing with the legal ground challenging the validity of notice issued u/s 274 r.w.s. 271AAB of the Act had observed that ; "It is clear from the Sub Section (3) of Section 271 AAB that Sections 274 and Section 275 of the Act shall, so far as may be, apply. Sub Section (1) of Section 274 of the Act mandates that order imposing penalty has to be imposed only after hearing the assessee or giving a assessee opportunity of hearing. Opportunity that is to be given to the assessee should be a meaningful one and not a farce. Notice issued to the assessee reproduced (supra), does not show whether penalty proceedings were initiated for concealment of income or for furnishing inaccurate particulars of income or for having undisclosed income within the meaning of Section 271AAB of the Act. Notice in our opinion was vague. Hon'ble Karnataka High Cour....
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.... under:- "Notice under section 274 of the Act should specifically state the grounds mentioned in section 271(l)(c) , i.e., whether it is for concealment of income or for furnishing of incorrect particulars of income. Sending printed form where all the grounds mentioned in section 271 are mentioned would not satisfy the requirement of law; The assessee should know the grounds which he has to meet specifically. Otherwise, the principles of natural justice are offended. On the basis of such proceedings, no penalty could be imposed on the assessee) taking up of penalty proceedings on one limb and finding the assessee guilty of another limb is bad in law; penalty proceedings are distinct from the assessment proceedings : though proceedings for imposition of penalty emanate from proceedings of assessment, they are independent and a separate aspect of the proceedings; The findings recorded in the assessment proceedings in so far as "concealment of income" and "furnishing of incorrect particulars" would not operate as res judicata in the penalty proceedings. It is open to the assessee to contest the proceedings on the merits. However, the validity of the....
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....w cause notice clearly mentions section 271AAB, which was fully comprehended by the assessee as reveals in the reply filed by the assessee against the said show cause notice. Hence the Hon'ble High Court has held as under: - "The ld A.Rs have also challenged that the caption of the notice mentioned only section 271 and not 271AAB. In this respect, the copy of notice has been produced by the ld. A.R. before me. It is seen that the ld A.R is correct in observing that the section of penalty has not been correctly mentioned by the AO in the caption. However, the AO will get the benefit of section 292BB of the Income Tax Act, 1961 because firstly, the assessee has raised no objection before the AO in this regard. Secondly, last line of the notice clearly mentions section 271AAB. Thirdly, the assessee has given reply to said notice which shows that the assessee fully comprehended the implication of the notice that it is for section 271AAB. The assessee has also challenged that the principles of natural justice has not followed by the AO. The detailed submissions of A.R. in this regard has already been reproduced above. The A.R. did not produce any evidence to show that ....
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....e penalty notice under the heading of Section 274 r.w.s. 271AAB of the Act pre printed format of issuing notice u/s 271(1)(c) of the Act is appearing which relates to levy of penalty for concealment of particulars of income or furnishing inaccurate particulars of income. In the assessee's case Ld. A.O ought to have mentioned the specific charges provided u/s 271AAB of the Act rather than the charges of Section 271(1)(c) of the Act. We therefore are of the considered view that this decision of Indore ITAT in the case of Dr. Rajesh Jain (supra) is squarely applicable on the issues raised by the assessee(s) in these appeals. 18. Moving further we observe that in the instant case Ld. CIT(A) reduced the penalty to 10% applying provisions of Section 271AAB(a) of the Act as against penalty levied @30% by the Ld. A.O u/s 271AAB(c) of the Act but to our surprise Ld. CIT(A) has not taken pain to issue a fresh notice before reducing the penalty thus not giving reasonable opportunity of being heard as mandated under the proviso to Section 275. We find that similar issue came up before us in the case of Shri Vivek Chugh V/s ACIT ITA No.636/Ind/2017 order dated 28.03.2019 wherein the appea....
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....f the Tribunal rendered in the cases of: S.no. Citation 1 SandeepChandak&Ors. vs. ACIT (2017) 55 ITR 209 (Luck. Trib.) 2 ShriAnujMathur vs. DCIT 2018 (6) TMI 1311 ITAT Jaipur) 3 Shri Ravi Mathur vs. DCIT 2018 (6) TMI 1128 ITAT Jaipur) 4 Shri Suresh Chand Mittal vs. DCIT 2018 (7) TMI 220 (ITAT Jaipur) 5 DCITvs. Manish Agarwala 2018 (2) TMI 972 (ITAT Kol.) 6 DCITvs. Subhas Chandra Agarwala 2018 (5) TMI 1602 (ITAT Kal.) 7 PankajJalan vs. DCIT2018 (5) TMI 1591 (ITAT Kal.) 8 DCIT vs. Sanwar Mal Agarwala and Adtam Saran Khemka 2018 (5) TMI 422 (ITAT 9 ACIT vs. M/s. Amrit Hatcheries Pvt. Ltd. 2018 (3) TMI 44 (ITAT 1 DCIT vs. Subhas Chandra Agarwala & Sons (HUF) 2018 (3) TMI 214(ITAT Kol.) 1 Marvel vs. ACIT TMI 946 (ITAT Vishakhapatn To buttress his contention that notice so issued is illegal and therefore, is not sustainable in the eyes of law. 5. On the contrary Ld. DR opposes the submissions and supported the order of the authorities below. Ld. DR submitted that there no ambiguity under the law in case assessee admits amount being in disclosed then it is to be dealt with in the manner prescribed un....
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.... since the penalty notice issued u/s 274 r.w.s. 271AAB is vague and does not fulfill the requirement of law since no specific charges provided u/s 274 r.w.s. 271AAB of the Act are appearing in the body of penalty notice. Since the penalty proceedings has been quashed and legal ground allowed in favour of the assessee(s), all the penalties sustained by Ld. CIT(A) in all these cases at Rs. 11,14,088/- (in the case of Smt. Rajrani Mittal), Rs. 8,44,176/- (in the case of Anshul Mittal), Rs. 5,24,296/- (in the case of Ankit Mittal), Rs. 3,64,285/- and Rs. 6,50,000/-(in the case of Neha Mittal), and Rs. 4,57,513/- and Rs. 5,35,000/- (in the case of Shweta Mittal) in ITA No.853, 852, 854 to 858/Ind/2019 stands deleted. 21. Apropos to the grounds raised on merits by the assessee challenging the quantum of penalty sustained by CIT(A) u/s 271AAB(a) of the Act we are of the view that adjudicating these grounds on merits will be merely academic in nature since we have already quashed the penalty proceedings allowing the legal ground in assessee(s) favour therefore all the grounds raised on merits are deemed to be infructuous. 22. In the result all the appeals of the assessee(s) are allow....