M/s Job Need Security Services, NORTH 24 PARGANAS V. I.T.O.,Ward-50(1), Kolkata

ITA 1679/KOL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3522 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-10-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 15-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHRUBAJYOTI ROY
• Assessee Lawyers: S K TULSIYAN
• Keywords: Invalid notice; Opportunity of being heard; Principle of natural justice; Question of law; Condonation of delay
• Section: 271(1)(c); 274; 69

Judgement Text

ITA NOS. 1678 & 1679/KOL/2019 M/S JOB NEED SECURITY SERVICES A.YS. 2011-12 & 2012-13 1 | P A GE , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI P. M. JAGTAP, VICE-PRESIDENT AND SHRI A. T. VARKEY, JM] I.T.A. NOS. 1678 & 1679/KOL/2019 ASSESSMENT YEARS: 2011-12 & 2012-13 M/S JOB NEED SECURITY SERVICES (PAN: AAFFJ 2938 P ) VS. ITO, WARD-51(1), KOLKATA APPELLANT RESPONDENT DATE OF HEARING (VIRTUAL) 19.10.2020 DATE OF PRONOUNCEMENT 06. 11.2020 FOR THE APPELLANT SHRI S. K. TULSIYAN, CA FOR THE RESPONDENT SHRI DHRUBAJYOTI ROY, JCIT ORDER PER SHRI A.T. VARKEY, JM: THESE ARE THE APPEALS PREFERRED BY THE ASSESSEE AGA INST THE ORDERS OF LD.CIT(A)-15, KOLKATA DATED 08.10.2018 FOR 2011-12 AND ORDER DATED 05.11.2018 FOR AY 2012-13 CONFIRMING THE PENALTY LEVIED U/S 271(1) (C) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT). 2. WE NOTE THAT THERE IS A DELAY OF 17 DAYS FOR FI LING THIS APPEAL. AFTER GOING THROUGH THE APPLICATION FOR CONDONATION OF DELAY AN D AFFIDAVIT FILED BY THE ASSESSEE WE ARE OF THE OPINION THAT THE CAUSE FOR DELAY WAS REASONABLE AND NOT AN INTENTIONAL ACT OF ASSESSEE. SO WE CONDONE THE DELAY AND PROCEED TO HEAR THE APPEAL. 3. AT THE OUTSET, THE LD. A.R OF THE ASSESSEE DREW OUR ATTENTION TO PAGE NO. 1 OF BOTH ASSESSMENT YEARS PAPER BOOK FROM WHICH WE FIND PLACED THE COPY OF NOTICE ISSUED BY THE ASSESSING OFFICER U/S 274 READ WITH S ECTION 271(1)(C) OF THE ACT FOR AY ITA NOS. 1678 & 1679/KOL/2019 M/S JOB NEED SECURITY SERVICES A.YS. 2011-12 & 2012-13 2 | P A GE 2011-12 AND 2012-13 RESPECTIVELY. WE NOTE FROM THE NOTICE FOR AY 2011-12 WHICH DATED 30.01.2014 AS WELL AS FOR AY 2012-13 NOTICE D ATED 19.01.2015 THAT ASSESSING OFFICER HAS NOT STRICKEN OUT CHARGE/FAULT WHICH ARE NOT APPLICABLE IN THE CASE OF ASSESSEE I.E. WHETHER THE ASSESSEE HAS CONCEALED TH E PARTICULARS OF ITS INCOME OR IT HAS FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. SI NCE BOTH THE FAULTS/CHARGES ARE GIVEN IN THE NOTICE, ACCORDING TO LD. A.R THE NOTIC E PROPOSING PENALTY ARE INVALID AND THEREFORE ALL THE CONSEQUENTIAL ACTION INITIATED ON AN INVALID NOTICE IS BAD IN LAW AS HELD BY THE HONBLE KARNATAKA HIGH COURT IN THE CAS E OF IN THE CASE OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY (2013) 359 ITR 565(KAR) WHICH DECISION WAS FOLLOWED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. M/S SSAS EMERALD MEADOWS DATED 23.11.2015. ACCORDING TO LD. COUNSEL THE SLP PREFERRED BY THE REVENUE AGAINST THE DECISION OF HONBLE KARNATA KA HIGH COURT OF MANJUNATHA (SUPRA) WAS DISMISSED BY THE HONBLE SUPREME COURT. WE NOTE THAT THE ASSESSEE HAS RAISED A LEGAL ISSUE OF PENALTY LEVIED AFTER ISSUIN G INVALID PENALTY NOTICE BY RELYING ON THE DECISION OF HONBLE KARNATAKA HIGH COURT AS WEL L AS HONBLE JURISDICTIONAL CALCUTTA HIGH COURT IN PCIT VS. DR. MURARI MOHAN KO LEY IN ITAT NO. 306 OF 2017 G.A NO. 2968 OF 2017 DATED 18.07.2018. 4. IN ORDER TO ADJUDICATE THE LEGAL ISSUE, WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULLY GONE THROUGH THE PENALTY NOTICE DATED 30. 01.2014 FOR AY 2011-12 AND PENALTY NOTICE DATED 19.01.2015 FOR AY 2012-13 ISSU ED U/S 274 READ WITH SECTION 271 OF THE ACT. FROM A PERUSAL OF THE IMPUGNED NOTICES , WE NOTE THAT THE ASSESSING OFFICER HAS ISSUED / SENT SHOW CAUSE NOTICE FOR BOT H THE FAULTS ENVISAGED U/S 271(1)(C ) OF THE ACT I.E. WHETHER THE ASSESSEE HAS CONCEALED PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. SO WE NOTE THAT S HOW CAUSE NOTICE ISSUED BY THE ASSESSING OFFICER PROPOSING LEVY OF PENALTY U/S 271 (1)(C ) OF THE ACT IS DEFECTIVE / INVALID IN THE EYES OF LAW AND CONSEQUENTLY LEVY OF PENALTY IS BAD IN LAW AS HELD BY THE KARNATAKA HIGH COURT IN MANJUNATHA (SUPRA) AND AGA INST THIS DECISION OF HONBLE KARNATAKA HIGH COURT AN SLP WAS PREFERRED BY THE RE VENUE WHICH WAS DISMISSED BY THE HONBLE SUPREME COURT AS WELL AS HONBLE JURISD ICTIONAL CALCUTTA HIGH COURT IN ITA NOS. 1678 & 1679/KOL/2019 M/S JOB NEED SECURITY SERVICES A.YS. 2011-12 & 2012-13 3 | P A GE PCIT VS. DR. MURARI MOHAN KOLEY IN ITAT NO. 306 OF 2017 G.A NO. 2968 OF 2017 DATED 18.07.2018 WHICH WILL BE DISCUSSED IN DETAIL INFRA. 5. AS DISCUSSED ABOVE, A READING OF THE PENALTY NO TICE, WE NOTE THAT THE AO HAS NOT STRICKEN OUT THE IRRELEVANT PORTION OF THE FAUL T/CHARGE WHICH WOULD HAVE SPELT OUT THE SPECIFIC FAULT/CHARGE AGAINST THE ASSESSEE AS P ER SECTION 271(1) (C) OF THE ACT. SINCE THE PROPOSED NOTICE ITSELF IS DEFECTIVE, ALL SUBSEQUENT PROCEEDINGS ARE BAD IN LAW AND THE PENALTY IMPOSED BY THE AO U/S. 271(1)(C) OF THE ACT AND CONFIRMED BY THE LD. CIT(A) SHOULD BE CANCELLED. FOR COMING TO SUCH A CO NCLUSION WE RELY ON THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SSAS EMERALD MEADOWS IN ITA NO.380 OF 2015 DATED 23.11.2015 WHEREIN THE HONBLE KARNATAKA HIGH COURT FOLLOWING ITS OWN DECISION IN THE CASE OF CIT VS MA NJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565 TOOK A VIEW THAT IMPOSIN G OF PENALTY U/S 271(1)(C) OF THE ACT IS BAD IN LAW AND INVALID FOR THE REASON THAT T HE SHOW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSE E AS TO WHETHER IT IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. FURTHER WE NOTE THAT AS AGAINST THE DECISIO N OF THE HONBLE KARNATAKA HIGH COURT, THE REVENUE PREFERRED AN APPEAL BEFORE THE HONBLE SUPREME COURT [SLP IN CC NO.11485 OF 2016] AND THE APEX COURT BY ITS ORDER D ATED 05.08.2016 DISMISSED THE SLP PREFERRED BY THE DEPARTMENT. FURTHER WE NOTE T HE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS SHRI SAMSON PERINCHERY IN ITA NO.1154 OF 2014 DATED 05.01.2017 WHEREIN THE HONBLE BOMBAY HI GH COURT FOLLOWING THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY (SUPRA) CAME TO THE CONC LUSION THAT IMPOSITION OF PENALTY ON DEFECTIVE SHOW CAUSE NOTICE WITHOUT SPECIFYING T HE CHARGE AGAINST THE ASSESSEE CANNOT BE SUSTAINED. WE ALSO NOTE THE HONBLE JURIS DICTIONAL HIGH COURT IN THE CASE OF DR. MURARI MOHAN KOLEY (SUPRA) UPHELD THE SAME VIEW OF KARNATAKA HIGH COURT (SURPA). WE ALSO NOTE THE DECISION OF ITAT IN THE C ASE OF SUVAPRASANNA BHATTACHARYA ITA NOS. 1678 & 1679/KOL/2019 M/S JOB NEED SECURITY SERVICES A.YS. 2011-12 & 2012-13 4 | P A GE VS ACIT IN ITA NO.1303/KOL/2010 DATED 06.11.2015 WH EREIN IDENTICAL LEGAL PROPOSITION HAS BEEN FOLLOWED BY THE TRIBUNAL. 6. LD. DR VEHEMENTLY OPPOSED THE ACTION SUGGESTED B Y US AND HAS CITED VARIOUS CASE LAWS TO OPPOSE THE CASE LAWS SUGGESTED BY US ( SUPRA). WE NOTE THAT ALL THE CASE LAWS CITED BEFORE US BY THE LD. DR HAS BEEN DEALT W ITH ELABORATELY BY THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF JEETMAL CHORA RIA VS. ACIT, ITA NO. 956/KOL/2016 FOR AY 2010-11 DATED 01.12.2017, WHERE IN THE TRIBUNAL HAS NOTED AS UNDER: 7. THE LEARNED DR SUBMITTED THAT THE HONBLE CA LCUTTA HIGH COURT IN THE CASE OF DR. SYAMAL BARAN MONDAL VS. CIT (2011) 244 CTR 631 (CAL) HAS TAKEN A VIEW THAT SEC.271 DOES NOT MANDATE THAT THE RECORDING OF SATI SFACTION ABOUT CONCEALMENT OF INCOME MUST BE IN SPECIFIC TERMS AND WORDS AND THAT SATISFACTION OF AO MUST REFLECT FROM THE ORDER EITHER WITH EXPRESSED WORDS RECORDED BY THE AO OR BY HIS OVERT ACT AND ACTION. IN OUR VIEW THIS DECISION IS ON THE QUESTI ON OF RECORDING SATISFACTION AND NOT IN THE CONTEXT OF SPECIFIC CHARGE IN THE MANDATORY SHO W CAUSE NOTICE U/S.274 OF THE ACT. THEREFORE REFERENCE TO THIS DECISION, IN OUR VIEW I S NOT OF ANY HELP TO THE PLEA OF THE REVENUE BEFORE US. 8. THE LEARNED DR RELIED ON THREE DECISIONS OF MU MBAI ITAT VIZ., (I) DHANRAJ MILLS PVT. LTD. VS. ACIT ITA NO.3830 & 3833/MUM/2009 DATE D 21.3.2017; (II) EARTHMOVING EQUIPMENT SERVICE CORPORATION VS. DCIT 22(2), MUMBA I, (2017) 84 TAXMANN.COM 51 (III) MAHESH M.GANDHI VS. ACIT VS. ACIT ITA NO.2976 /MUM/2016 DATED 27.2.2017. RELIANCE WAS PLACED ON TWO DECISIONS OF THE HONBLE BOMBAY HIGH COURT VIZ., (I) CIT VS. KAUSHALYA 216 ITR 660(BOM) AND (II) M/S.MAHARAJ GARAGE & CO. VS. CIT DATED 22.8.2017. THIS DECISION WAS REFERRED TO IN THE WR ITTEN NOTE GIVEN BY THE LEARNED DR. THIS IS AN UNREPORTED DECISION AND A COPY OF THE SA ME WAS NOT FURNISHED. HOWEVER A GIST OF THE RATIO LAID DOWN IN THE DECISION HAS BEE N GIVEN IN THE WRITTEN NOTE FILED BEFORE US. 9. IN THE CASE OF CIT VS. KAUSHALYA (SUPRA), THE H ONBLE BOMBAY HIGH COURT HELD THAT SECTION 274 OR ANY OTHER PROVISION IN THE ACT OR THE RULES, DO ES NOT EITHER MANDATE THE GIVING OF NOTICE OR ITS ISSUANCE IN A PARTICULA R FORM. PENALTY PROCEEDINGS ARE QUASI- CRIMINAL IN NATURE. SECTION 274 CONTAINS THE PRINCIPLE OF NATURAL JUSTICE OF THE A SSESSEE BEING HEARD BEFORE LEVYING PENALTY. RULES OF NATURA L JUSTICE CANNOT BE IMPRISONED IN ANY STRAIGHT-JACKET FORMULA. FOR SUSTAINING A COMPL AINT OF FAILURE OF THE PRINCIPLES OF NATURAL JUSTICE ON THE GROUND OF ABSENCE OF OPPORTU NITY, IT HAS TO BE ESTABLISHED THAT PREJUDICE IS CAUSED TO THE CONCERNED PERSON BY THE PROCEDURE FOLLOWED. THE ISSUANCE OF NOTICE IS AN ADMINISTRATIVE DEVICE FOR INFORMING TH E ASSESSEE ABOUT THE PROPOSAL TO LEVY PENALTY IN ORDER TO ENABLE HIM TO EXPLAIN AS TO WHY IT SHOULD NOT BE DONE. MERE MISTAKE IN THE LANGUAGE USED OR MERE NON-STRIKING OF THE IN ACCURATE PORTION CANNOT BY ITSELF INVALIDATE THE NOTICE. THE ITAT MUMBAI BENCH IN THE CASE OF DHANRAJ MILLS PVT.LTD. (SUPRA) FOLLOWED THE DECISION RENDERED BY THE JURIS DICTIONAL HONBLE BOMBAY HIGH COURT IN THE CASE OF KAUSHALYA (SUPRA) AND CHOSE NO T TO FOLLOW DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTT ON & GINNING FACTORY (SUPRA). RELIANCE WAS ALSO PLACED BY THE ITAT MUMBAI IN THIS DECISION ON THE DECISION OF ITA NOS. 1678 & 1679/KOL/2019 M/S JOB NEED SECURITY SERVICES A.YS. 2011-12 & 2012-13 5 | P A GE HONBLE PATNA HIGH COURT IN THE CASE OF CIT V. MITHILA MOTOR 'S (P.) LTD. [1984] 149 ITR 751 (PATNA) WHEREIN IT WAS HELD THAT UNDER SECTION 274 OF THE INCOME-TAX ACT, 1961, ALL THAT IS REQUIRED IS THAT THE ASSESSEE SHO ULD BE GIVEN AN OPPORTUNITY TO SHOW CAUSE. NO STATUTORY NOTICE HAS BEEN PRESCRIBED IN T HIS BEHALF. HENCE, IT IS SUFFICIENT IF THE ASSESSEE WAS AWARE OF THE CHARGES HE HAD TO MEE T AND WAS GIVEN AN OPPORTUNITY OF BEING HEARD. A MISTAKE IN THE NOTICE WOULD NOT INVA LIDATE PENALTY PROCEEDINGS. 10. IN THE CASE OF EARTHMOVING EQUIPMENT SERVICE CO RPORATION (SUPRA), THE ITAT MUMBAI DID NOT FOLLOW THE DECISION RENDERED IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY (SUPRA) FOR THE REASON THAT PENALTY IN THAT CASE WAS DELETED FOR SO MANY REASONS AND NOT SOLELY ON THE BASIS OF DEFECT IN SHOW CAUSE NOTICE U/S.274 OF THE ACT. THIS IS NOT FACTUALLY CORRECT. ONE OF THE PAR TIES BEFORE THE GROUP OF ASSESSEES BEFORE THE KARNATAKA HIGH COURT IN THE CASE OF MANJ UNATHA COTTON & GINNING (SUPRA) WAS AN ASSESSEE BY NAME M/S.VEERABHADRAPPA SANGAPPA & CO., IN ITA NO.5020 OF 2009 WHICH WAS AN APPEAL BY THE REVENUE. THE TRIBU NAL HELD THAT ON PERUSAL OF THE NOTICE ISSUED UNDER SECTION 271(1)(C) OF THE ACT, I T IS CLEAR THAT IT IS A STANDARD PROFORMA USED BY THE ASSESSING AUTHORITY. BEFORE IS SUING THE NOTICE THE INAPPROPRIATE WORDS AND PARAGRAPHS WERE NEITHER STRUCK OFF NOR DE LETED. THE ASSESSING AUTHORITY WAS NOT SURE AS TO WHETHER SHE HAD PROCEEDED ON THE BAS IS THAT THE ASSESSEE HAD EITHER CONCEALED ITS INCOME OR HAS FURNISHED INACCURATE DE TAILS. THE NOTICE IS NOT IN COMPLIANCE WITH THE REQUIREMENT OF THE PARTICULAR S ECTION AND THEREFORE IT IS A VAGUE NOTICE, WHICH IS ATTRIBUTABLE TO A PATENT NON APPLI CATION OF MIND ON THE PART OF THE ASSESSING AUTHORITY. FURTHER, IT HELD THAT THE ASSE SSING OFFICER HAD MADE ADDITIONS UNDER SECTION 69 OF THE ACT BEING UNDISCLOSED INVES TMENT. IN THE APPEAL, THE SAID FINDING WAS SET-ASIDE. BUT ADDITION WAS SUSTAINED O N A NEW GROUND, THAT IS UNDER VALUATION OF CLOSING STOCK. SINCE THE ASSESSING AUT HORITY HAD INITIATED PENALTY PROCEEDINGS BASED ON THE ADDITIONS MADE UNDER SECTI ON 69 OF THE ACT, WHICH WAS STRUCK DOWN BY THE APPELLATE AUTHORITY, THE INITIATED PENA L PROCEEDINGS, NO LONGER EXISTS. IF THE APPELLATE AUTHORITY HAD INITIATED PENAL PROCEED INGS ON THE BASIS OF THE ADDITION SUSTAINED UNDER A NEW GROUND IT HAS A LEGAL SANCTUM . THIS WAS NOT SO IN THIS CASE AND THEREFORE, ON BOTH THE GROUNDS THE IMPUGNED ORDER P ASSED BY THE APPELLATE AUTHORITY AS WELL AS THE ASSESSING AUTHORITY WAS SET-ASIDE BY IT S ORDER DATED 9TH APRIL, 2009. AGGRIEVED BY THE SAID ORDER, THE REVENUE FILED APPE AL BEFORE HIGH COURT. THE HONBLE HIGH COURT FRAMED THE FOLLOWING QUESTION OF LAW IN THE SAID APPEAL VIZ., 1. WHETHER THE NOTICE ISSUED UNDER SECTION 271(1)(C) IN THE PRINTE D FORM WITHOUT SPECIFICALLY MENTIONING WHETHER THE PROCEEDINGS ARE INITIATED ON THE GROUND OF CONCEALMENT OF INCOME OR ON ACCOUNT OF FURNISHING OF INACCURATE PA RTICULARS IS VALID AND LEGAL? 2. WHETHER THE PROCEEDINGS INITIATED BY THE ASSESSING AUTHORITY WAS LEGAL AND VALID? THE HONBLE KARNATAKA HIGH COURT HELD IN THE NEGATIVE A ND AGAINST THE REVENUE ON BOTH THE QUESTIONS. THEREFORE THE DECISION RENDERED BY THE ITAT MUMBAI IN THE CASE OF EARTHMOVING EQUIPMENT SERVICE CORPORATION (SUPRA) I S OF NO ASSISTANCE TO THE PLEA OF THE REVENUE BEFORE US. 11. IN THE CASE OF M/S. MAHARAJ GARAGE & CO. VS. C IT DATED 22.8.2017 REFERRED TO IN THE WRITTEN NOTE GIVEN BY THE LEARNED DR, WHICH I S AN UNREPORTED DECISION AND A COPY OF THE SAME WAS NOT FURNISHED, THE SAME PROPOSITION AS WAS LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SMT. KAUSHALYA (SU PRA) APPEARS TO HAVE BEEN REITERATED, AS IS EVIDENT FROM THE EXTRACTS FURNISH ED IN THE WRITTEN NOTE FURNISHED BY THE LEARNED DR BEFORE US. 12. IN THE CASE OF TRISHUL ENTERPRISES ITA NO.384 & 385/MUM/2014, THE MUMBAI BENCH OF ITAT FOLLOWED THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SMT. KAUSHALYA (SUPRA). ITA NOS. 1678 & 1679/KOL/2019 M/S JOB NEED SECURITY SERVICES A.YS. 2011-12 & 2012-13 6 | P A GE 13. IN THE CASE OF MAHESH M. GANDHI (SUPRA) THE MU MBAI ITAT THE ITAT HELD THAT THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE MANJUNATHA COTTON & GINNING (SUPRA) WILL NOT BE APPLICABLE TO THE FACTS OF THAT CASE BECAUSE THE AO IN THE ASSESSMENT ORDER WHILE INITIATING PENALTY PROCEEDIN GS HAS HELD THAT THE ASSESSEE HAD CONCEALED PARTICULARS OF INCOME AND MERELY BECAUSE IN THE SHOW CAUSE NOTICE U/S.274 OF THE ACT, THERE IS NO MENTION WHETHER THE PROCEED INGS ARE FOR FURNISHING INACCURATE PARTICULARS OR CONCEALING PARTICULARS OF INCOME, TH AT WILL NOT VITIATE THE PENALTY PROCEEDINGS. IN THE PRESENT CASE THERE IS NO WHISPE R IN THE ORDER OF ASSESSMENT ON THIS ASPECT. WE HAVE POINTED OUT THIS ASPECT IN THE EAR LIER PART OF THIS ORDER. HENCE, THIS DECISION WILL NOT BE OF ANY ASSISTANCE TO THE PLEA OF THE REVENUE BEFORE US. EVEN OTHERWISE THIS DECISION DOES NOT FOLLOW THE RATIO L AID DOWN BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNI NG (SUPRA) IN AS MUCH AS THE RATIO LAID DOWN IN THE SAID CASE WAS ONLY WITH REFE RENCE TO SHOW CAUSE NOTICE U/S.274 OF THE ACT. THE HONBLE COURT DID NOT LAY DOWN A PROP OSITION THAT THE DEFECT IN THE SHOW CAUSE NOTICE WILL STAND CURED IF THE INTENTION OF T HE CHARGE U/S.271(1) (C ) IS DISCERNIBLE FROM A READING OF THE ASSESSMENT ORDER IN WHICH THE PENALTY WAS INITIATED. 14. FROM THE AFORESAID DISCUSSION IT CAN BE SEEN T HAT THE LINE OF REASONING OF THE HONBLE BOMBAY HIGH COURT AND THE HONBLE PATNA HIG H COURT IS THAT ISSUANCE OF NOTICE IS AN ADMINISTRATIVE DEVICE FOR INFORMING TH E ASSESSEE ABOUT THE PROPOSAL TO LEVY PENALTY IN ORDER TO ENABLE HIM TO EXPLAIN AS TO WHY IT SHOULD NOT BE DONE. MERE MISTAKE IN THE LANGUAGE USED OR MERE NON-STRIKING OF THE IN ACCURATE PORTION CANNOT BY ITSELF INVALIDATE THE NOTICE. THE TRIBUNAL BENCHES AT MUM BAI AND PATNA BEING SUBORDINATE TO THE HONBLE BOMBAY HIGH COURT AND PATNA HIGH COU RT ARE BOUND TO FOLLOW THE AFORESAID VIEW. THE TRIBUNAL BENCHES AT BANGALORE HAVE TO FOLLOW THE DECISION OF THE HONBLE KARNATAKA HIGH COURT. AS FAR AS BENCHES O F TRIBUNAL IN OTHER JURISDICTIONS ARE CONCERNED, THERE ARE TWO VIEWS ON THE ISSUE, ON E IN FAVOUR OF THE ASSESSEE RENDERED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA) AND OTHER OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SMT.KAUSHALYA. IT IS SETTLED LEGAL POSITION THAT WHERE TWO VIEWS ARE AVAILABLE ON AN ISSUE, THE VIEW FAVOURABLE TO THE ASSESSEE HAS TO BE FOLLOWED. WE THEREFORE PREFER TO FOLLOW THE VIEW EXPRESSED BY THE HONBLE KARNATAKA HIGH COURT IN TH E CASE OF MANJUNATHA COTTON & GINNING (SUPRA). 15. WE HAVE ALREADY OBSERVED THAT THE SHOW CAUSE N OTICE ISSUED IN THE PRESENT CASE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALING PARTICULARS OF INCOME OR FURNISHING INAC CURATE PARTICULARS OF INCOME. THE SHOW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT STRIK E OUT THE INAPPROPRIATE WORDS. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT IMPOSI TION OF PENALTY CANNOT BE SUSTAINED. THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE WHICH IS BASED ON THE DECISIONS REFERRED TO IN THE EARLIER PART OF THIS ORDER HAS TO BE ACCEPTE D. WE THEREFORE HOLD THAT IMPOSITION OF PENALTY IN THE PRESENT CASE CANNOT BE SUSTAINED AND THE SAME IS DIRECTED TO BE CANCELLED. 7. RESPECTFULLY FOLLOWING THE AFORESAID ORDER OF TH E COORDINATE BENCH OF THIS TRIBUNAL, WE, THEREFORE, HOLD THAT IMPOSITION OF PE NALTY AND SUBSEQUENTLY CONFIRMED BY THE LD. CIT(A) IN THE PRESENT CASES CANNOT BE SU STAINED AND THE SAME IS HEREBY DELETED. THEREFORE, THE APPEALS OF ASSESSEE ARE ALL OWED. ITA NOS. 1678 & 1679/KOL/2019 M/S JOB NEED SECURITY SERVICES A.YS. 2011-12 & 2012-13 7 | P A GE 8. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALL OWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 06.11.20 20. SD/- SD/- (J(( (P. M. JAGTAP) (A. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED: 06.11.2020 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. APPELLANT- M/S JOB NEED SECURITY SERVICES , 47, BAN AMALIPUR ROAD, BARASAT, NORTH 24 PARGANAS, KOLKATA-700124. 2. RESPONDENT- ITO, WARD-50(1), KOLKATA 3. THE CIT(A)- 15, KOLKATA (SENT THROUGH E-MAIL) 4. CIT- , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES, KOLKATA