TaxTMI 
TaxTMI 
2021 (1) TMI 879
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....ground on which revenue has sought this Miscellaneous Application was that there was an error which had occurred in the order of the Tribunal in respect of the action of the Tribunal deleting the penalty levied u/s.271(1)(c) of the Act on the ground that the penalty show-cause notice had not struck off the irrelevant portion and the Assessing Officer had not specifically mentioned the offence committed by the assessee as to whether it had concealed the particulars of income or had furnished inaccurate particulars of income. This is the only ground on which the revenue had preferred Miscellaneous Application before us. 3. Before us, the ld. DR submitted that though it is a fact that in the show-cause notice, the Assessing Officer had not ....
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....his Tribunal had also cancelled the levy of penalty on the ground of non-striking of the relevant portion in the show-cause notice by placing reliance on the Co-ordinate Bench decision of this Tribunal in the case of Radhakrishna Roadways Pvt. Ltd., vs. ACIT in ITA No.3728/Mum/2017 dated 14/03/2019, the decision of the Hon'ble Jurisdictional High Court in the case of Samson Perinchary in ITA No.1154/Mum/2014, decision of Hon'ble Karnataka High Court in CIT vs Manjunatha Cotton and Ginning Factory reported in 359 ITR 565 and the decision of the Hon'ble Andhra Pradesh High Court in the case of PCIT vs. Smt. Baisetty Revathi reported in 398 ITR 88. The ld. AR also pointed out that in the case of assessee's sister concern i.e. Radhakrishna Road....
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....e Act, whereas the defect in the penalty show cause notice in the instant case is a jurisdictional defect and is not curable u/s 292B of the Act as held by various decisions of Hon'ble High Courts. 5.1. We find that at the outset the show-cause notice issued u/s.274 r.w.s. 271(1)(c) of the Act clearly stipulates that the Assessing Officer is supposed to strike off the irrelevant portion and specify the following: a. Whether the assessee has concealed the particulars of income or b. Whether the assessee has furnished inaccurate particulars of income or c. Whether the assessee has concealed particulars of income and furnished inaccurate particulars of income. 5.2. The offence mentioned above is mandatorily req....
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....ant portion of the said Miscellaneous Application are reproduced hereunder:- "2. The learned D.R. submitted that while passing the said order dated 14.03.2019, the Tribunal held that while issuing the notice u/s.274 r.w.s.271 of the Act dated 28.03.2013, the AO has not indicated one of the two limbs on which the penalty was proposed to be imposed. The ld DR. during the course of hearing took the bench through the contents of the notice and submitted that the AO has indicated the limb by highlighting the relevant portion whereas the redundant portion was not highlighted. Therefore, learned D.R. prayed that the said order may kindly be recalled as having prima facie apparent mistake. 3. The learned A.R. of the assessee on th....
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....After hearing the rival submissions and perusing the material available on record, we observe that the Miscellaneous Application is moved by the Department for recalling of the order of Tribunal dated 14.03.2019 whereby the Coordinate Bench of the Tribunal allowed the appeal of assessee by directing to delete the penalty imposed u/s.271(1)(c) of the Act on the ground that the AO has not applied his mind while issuing the notice u/s.274 r.w.s.271 of the Act dated 28.03.2013. We find that one of the two limbs "having concealed particulars of income" have been highlighted whereas the second limb has not been struck off, and this argument has been taken for the first time by way of this Miscellaneous Application only . We also perused the reply....