TaxTMI 
TaxTMI 
2022 (4) TMI 1311
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....9/2014 of Asstt. Commissioner of Income Tax, Circle-2, Margoa, [for short "AO"] u/s 271(1)(c) of the Act for the assessment year [for short "AY"] 2010-11. 2. In advancing the matter for adjudication, it is essential to reproduce grounds challenged by the appellant as under; "1. The learned CIT(A) erred in upholding penalty of Rs. 11,02,138/- considering there is a concealment of income without appreciating the facts of the case. 2. The notice u/s 274 do not specifically state whether penalty is being proposed to be imposed for concealment of particulars of income or for furnishing inaccurate particulars of income. 3. The appellant craves, leaves to / alter any other grounds at the time of hearing." (Emphasis Su....
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....ssee made futile written submission contending that, there has been no concealment of income in his case. Ld. AO, however finding no reasonable cause to displace with levy, relying on plethora of judicial precedents, by an order u/s 271(1)(c) levied a minimum penalty at the rate of 100% of the tax sought to be evaded for concealment of income on the basis of income assessed u/s 147 of the Act. 3.3 Ld. CIT(A) echoing the views of assessing officer, confirmed the penalty imposed by Ld. AO. Aggrieved therewith, the appellant assessee is before us with the grounds of appeal assailed at para 2 herein above. 4. During the course of hearing, the learned counsel for the assessee [for short "AR"] took us through the relevant facts of the case ....
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....shed inaccurate particulars of [such income, or] ( d) . . . . . he may direct that such person shall pay by way of penalty,- (i ) . . . . . (ii) . . . . . (iii) in the cases referred to in clause (c) [or clause (d)], [in addition to tax, if any, payable] by him, a sum which shall not be less than, but which shall not exceed [three times], the amount of tax sought to be evaded by reason of the concealment of particulars of his income or the furnishing of inaccurate particulars of such income. (Emphasis Supplied) 6.1 One can observe that the provisions of section 271(1)(c) of the Act lex lata, postulates that, penalty prescribed therein can only be levied on the occurrence of either of the situation, nam....
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.... * Have without reasonable cause . . . . . . . * Have concealed the particulars of your Income or furnished inaccurate particulars of such Income. * Have concealed the . . . . . . . (Emphasis Supplied) 6.3 The infirmity in the notice was sought to demonstrate a reflection of non-application of mind by the Ld. AO ex facie and in support thereof a reference can be made to the specific discussion laid by the Hon'ble Supreme Court in the case of Dilip N. Shroff (supra); "It is of some significance that in the standard proforma used by the Assessing Officer in issuing a notice despite the fact that the same postulates that inappropriate words and paragraphs were to be deleted, but the same had not been done. ....
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....0, which forms the part of this order. Demand notice and challan issued. Initiate penalty u/s 271(1)(c) of the IT Act, 271F of the IT Act & 271B of the IT Act." (Emphasis Supplied) 6.6 In our considered opinion, the attempt of the Ld. DR to demonstrate application of mind by the Assessing Officer is of no defence, inasmuch as the Hon'ble Supreme Court has approved the factum of non-specifying relevant clause in the notice is reflective of non-application of mind by the Assessing Officer. Further, it is also noticeable that such proposition has been considered by the Hon'ble Bombay High Court in plethora of cases inter-alia "CIT Vs Samson Pericherry", "PCIT Vs Goa Dorado" and "PCIT Vs New Era Sova Mine" wherein the Hon'ble Lordshi....
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....ral justice, and in the present case, considering the observations in the assessment order alongside in the action of issuing the notice without any limb or charge being made against the assessee qua section 271(1)(c) of the Act, establishes unfirm stance and therefore the proceedings suffered from non-compliance with the principles of "audi alteram partem". 8. Albeit, in view of the aforesaid discussion, the legal issue securely stands concluded in favour of assessee, but we are mindful to adjudicate the merits of the present case too and in doing so, nota bene, the penalty proceedings u/s 271(1)(c) was initiated on the basis of an order of assessment dt. 15/03/2014 u/s 143(3) r.w.s. 147 of the Act, wherein the returned income has been ....