2023 (6) TMI 1035

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....r 'the Act'). 2. Although assessee has raised various grounds but ld. Counsel for the assessee began with an additional ground which reads as under :- "That having regard to the facts and circumstances of the case, Ld. CIT(A) ought to have quashed the penalty order passed by Ld. AO on the ground that the charge on penalty notice dated 28.03.2013 was not specified/clear as to whether penalty is being initiated for "concealment of income" or for "furnishing inaccurate particulars of income". 3. For admission of the additional ground, ld. Counsel has submitted the following case laws :- * CIT vs. Sinhgad Technical Education Society, (2017) 397 ITR 0344 (SC). * NTPC Ltd. vs. CIT, (1998) 229 ITR 0383 (SC). ....

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....articulars of income and furnishing inaccurate particulars of income. Page 3 of the penalty order also mentions both the charges i.e. concealed the particulars of income and furnishing inaccurate particulars of income. Page 11 of Ld. CIT(A)'s order in penalty mentions both the charges i.e. concealed the particulars of income and furnishing inaccurate particulars of income. Therefore, the jurisdiction assumed in this case both vide assessment order and penalty notice was for non-specific charge and so was the penalty order and Ld. CIT(A)'s order. In view of following judicial decisions, penalty u/s 271(1)(c) in such cases cannot be imposed: * CIT vs. SSA's Emerald Meadows., (2016) 73 T....

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....onal fact of "satisfaction", As evident from the Assessment Order not to be discerned from contents of Notice u/s 274. C. Does not address Allahabad High Court- Rulings in a catena of cases- Contents of notice u/s 274 not prescribed by Statute mainly for show cause opportunity of hearing. D. The concept of prejudice as alluded to by Bombay High Court Full Bench-39 ITR 1, is contrary to Delhi High Court in Sudev Industries. Prejudice to be examined as an inference in Facts Vide principles enunciated by Supreme Court in the State of Haryana vs. Nar Singh E. Satisfaction- Jurisdictional Fact F. Posed as a Question of Law Answered by Bombay High Court in Shyam Biri....

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..... The exposition of Hon'ble High Court in this regard is as under :- "21. The Respondent had challenged the upholding of the penalty imposed under Section 271(1) (c) of the Act, which was accepted by the ITAT. It followed the decision of the Karnataka High Court in CIT v. Manjunatha Cotton & Ginning Factory 359 ITR 565 (Kar) and observed that the notice issued by the AO would be bad in law if it did not specify which limb of Section 271(1) (c) the penalty proceedings had been initiated under i.e. whether for concealment of particulars of income or for furnishing of inaccurate particulars of income. The Karnataka High Court had followed the above judgment in the subsequent order in Commissioner of Income Tax v. SSA's Emerald Meadows....