2022 (8) TMI 431

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.... aggrieved by the Order passed by the learned Commissioner of Income tax, (Appeals), National Faceless Appeal Centre, u/s 250 of the Income Tax Act presents this appeal against the same on the following grounds. 1. The learned CIT (A) has erred in confirming the penalty levied of Rs. 1, 00,000/- u/s 271B of the Income Tax Act, 1961. It is submitted that on the facts and circumstances of the case, the provisions of Section 271B of the Act are just not applicable in case of Appellant and therefore the penalty confirmed by incorrect application Section 271B of Rs. 1, 00,000/- be deleted. The same be held now. 2. The learned CIT (A) has failed in appreciating the facts of the case and detailed submission made during the course of appellat....

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....no.2 pertaining to the merits of the case, after going through the record of the appeal as produced before us i.e. assessment order, appeal order of Ld. CIT (A), copy of penalty notice issued and penalty order, we observed that there is a substantial legal issued involved which needs to be decided first as raised through ground no.1 and 3 by the assessee, keeping in view the decision of the Hon'ble Jurisdictional High Court of Mumbai in the case of Mohd. Farhan A. Shaikh Vs. DCIT (2021) 434 ITR 1 (Bombay) dated 11.03.2021. 4. We have heard both the parties and perused the records. At the outset, the Ld. AR assailing the action of the AO levying penalty u/s 271B of the Act brought to our notice that the show cause notice issued by AO u/s 27....

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....ty. Resultantly, the show cause notice is found to be defective/invalid, and therefore it is held to be bad in law. For doing that we rely on the decision of the Hon'ble Karnataka High Court in the case of CIT vs Manjunatha Cotton and Ginning Factory reported in (2013) 359 ITR 565 (Kar) and the Department's SLP against it has been dismissed by the Hon'ble Supreme Court. We also find that Hon'ble Karnataka High Court in the case of CIT Vs. SSA's Emerald Meadows, reported in (2016) 73 taxmann.com 241 (Kar) endorsed the same view in Manjunatha Cotton and Ginning Factory (supra) and held as under:- "3. The Tribunal has allowed the appeal filed by the assessee holding the notice issued by the Assessing Officer under section 274 read with Secti....