M/s Shukla Construction Company Pvt. Ltd., Bhopal V. Assistant Commissioner of Income Tax - 3(1) , Bhopal

ITA 219/Ind/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 3991 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-07-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 14-03-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AYUSH GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice; Question of law; Initiation of penalty proceedings
• Section: 271(1)(c); 143(3); 28

Judgement Text

ITA NO.219/IND/2018 M/S. SHUKLA CONSTRUCTION CO. P. LTD., BHOPAL , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.219/IND/2018 ASSESSMENT YEAR: 2013-14 M/S SHUKLA CONSTRUCTION COMPANY PVT. LTD. HIG-131, E-7, ARERA COLONY, BHOPAL (M.P.) / VS. A CIT - 3 (1) BHOPAL (A.O.) ( APPELLANT ) ( RE VENUE ) P.A. NO. AE DP R4103A APPELLANT BY SHRI SUMIT NEMA , SR. ADV. & SHRI AYUSH GUPTA, ADV. REVENUE BY SHRI AMIT KUMAR SONI , SR. DR DATE OF HEARING: 10.07.2019 DATE OF PRONOUNCEMENT: 21.08.2019 / O R D E R PER KUL BHARAT, J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX(APPEALS)-2, BHOPAL DATED 22/12/2017 PERTAINING TO ASSESSMENT YEAR 2013-14. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: ITA NO.219/IND/2018 M/S. SHUKLA CONSTRUCTION CO. P. LTD., BHOPAL 2 1. THAT THE LEVY OF PENALTY U/S 271 (1) (C) IS ILLEGAL, VOID AND WITHOUT JURISDICTION. 2. THAT THE INITIATIONS OF PENALTY PROCEEDINGS VIDE AS SESSMENT ORDER DATED 16/11/2015 WITHOUT SPECIFYING THE EXACT CHARGE FOR WHICH THE PENALTY IS BEING INITIATED RENDERS THE EN TIRE PENALTY PROCEEDING ILLEGAL, VOID AND WITHOUT JURISDICTION. 3. THAT THE SHOW CAUSE NOTICE DATED 16/11/15 ISSUED U/S 274 DID NOT CONTAINED ANY OF THE CHARGES 'INACCURATE PARTIC ULARS' OR 'CONCEALMENT OF INCOME'. SUCH A NOTICE U/S 274 IS ILLEGAL, VOID AND WITHOUT JURISDICTION AND THUS THE CONSEQUENT PE NALTY ORDER DESERVES TO BE QUASHED. 4. THAT THE PENALTY PROCEEDING INITIATED U/S 271 (1) (C) OF THE ACT IN THE ASSESSMENT ORDER OR EVEN VIDE NOTICE DATED 16/11/15 U/S 274 IS CONTRARY TO THE RATIO LAID DOWN BY THE HON'B LE SUPREME COURT IN CIT VS. SSA'S EMERAL MEADOWS (2016) 73 TAXMANN.COM 248 (SC) WHEREIN THE DECISION OF KARNAT AKA HIGH COURT RENDERED IN COMMISSIONER OF INCOME TAX -VS- MANJUNATHA COTTON AND GINNING FACTORY (2013) 3591TR 565 WAS UPHELD. 5. THAT EVEN ON MERITS THE PENALTY U/S 271 (1)(C ) DESERVES TO BE QUASHED AS IT IS NOT SUSTAINABLE EITHER IN LAW OR O N FACTS. THE ALLEGED INTEREST INCOME WAS ALREADY OFFERED IN THE SUBSEQUENT YEAR 2014-15 MUCH BEFORE THE ASSESSMENT PROCEEDINGS . THE ASSESSEE HAD SHOWN INTEREST INCOME OF AY 2014-15 AT RS. 17,74,550 AS AGAINST RS. 587773 SHOWN IN 26AS. THUS MUCH HIGHER INCOME WAS SHOWN IN SUBSEQUENT YEAR. THE DIF FERENCE IN OFFERING INCOME AROSE BECAUSE OF LATE INTIMATION BY BANK IN AY 2013-14 AND THUS THE INCOME WAS OFFERED IN THE SUBS EQUENT YEAR. THERE IS NO CONCEALMENT OF INCOME OR FURNISHI NG INACCURATE PARTICULARS. THE DIFFERENCE AROSE BECAUS E OF LATE REPORTING BY BANK. 6. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS, THE QUANTUM OF PENALTY AT RS.2,00,000/- IS ARBITRARY EXCESSIVE AND HIGH UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE ASSESSEE COMPANY IS ENGAGED IN BUSINESS OF CONSTRUC TION AND IS UNDERTAKING THE CONTRACT WITH THE STATE ITA NO.219/IND/2018 M/S. SHUKLA CONSTRUCTION CO. P. LTD., BHOPAL 3 GOVERNMENT AND CENTRAL GOVERNMENT TO CONSTRUCT BRID GES AND ROADS. THE RETURN OF INCOME FOR A.Y. 2013-14 WA S FILED ON 18.09.2013 DECLARING TOTAL INCOME OF RS.53,12,100/-. THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S 143(3) OF THE INCOME TAX ACT 1961(HEREINAFTER CALLED AS THE ACT) WAS F RAMED VIDE ORDER DATED 16.11.2015. THEREBY, ASSESSING INCOME AT RS.5 8,95,290/- HENCE AN ADDITION OF RS.4,73,709/- ON ACCOUNT OF D IFFERENCE BETWEEN THE DECLARED INTEREST INCOME AND INCOME AS REFLECTED IN FORM-26AS. THE ASSESSING OFFICER ALSO INITIATED PEN ALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. SUBSEQUENTLY, PENALTY U/S 271(1)(C) OF THE ACT WAS IMPOSED ON SOME OF RS. 25.05.2016. 3. AGGRIEVED BY THIS THE ASSESSEE PREFERRED AN APP EAL BEFORE THE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS DI SMISSED THE APPEAL AND SUSTAINED THE PENALTY. 4. NOW, THE ASSESSEE IS IN PRESENT APPEAL. 5. GROUND NOS. 1 TO 4 ARE AGAINST LEGALITY OF LEVY OF PENALTY. LD. SENIOR COUNSEL SHRI SUMIT NEMA, ARGUED THAT THE AUT HORITIES BELOW HAVE NOT FOLLOWED THE PROVISIONS OF LAW CORRECTLY. HENCE, INITIATION OF PENALTY PROCEEDING AND LEVY OF PENALTY IS ILLEGAL A ND UNJUSTIFIED. LD. ITA NO.219/IND/2018 M/S. SHUKLA CONSTRUCTION CO. P. LTD., BHOPAL 4 COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSI NG OFFICER HAS NOT RECORDED THE REQUISITE SATISFACTION AS CONTEMPL ATED UNDER THE LAW FOR INITIATING THE PENALTY PROCEEDINGS. 6. HE DREW OUR ATTENTION TO THE ASSESSMENT ORDER A ND COPY OF PENALTY NOTICE DATED 16.11.2015 TO BUTTRESS THE CON TENTION THAT THE NOTICE ISSUED IS NOT IN ACCORDANCE WITH LAW AND DOE S NOT DISCLOSE THE CHARGE FOR WHICH THE ASSESSEE IS BEING PRECEDED . HE SUBMITTED THAT THE LAW IS WELL SETTLED IN THIS REGARD RELIANC E IS HEAVILY PLACED ON THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COUR T RENDERED IN THE CASE OF PCIT VS KULWANT SINGH BHATIA 33 ITJ 777 (MP) AND ALSO THE JUDGMENT OF HON'BLE SUPREME COURT RENDERED IN THE CASE OF CIT VS. SSAS EMERALD MEADOWS (2016) 73 TAXMANN.COM 248 (HON'BLE SUPREME COURT) AND THE JUDGMENT OF HON'BLE KARNATA KA HIGH COURT RENDERED IN COMMISSIONER OF INCOME TAX VS MAN JUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. HE FURTHER SUBMITTED THAT EVEN ON MERIT, THE PENALTY U/S 271(1 )(C) OF THE ACT DESERVES TO BE QUASHED AS IT IS NOT SUSTAINABLE EIT HER IN LAW OR IN FACTS. IT IS FURTHER SUBMITTED THAT THE ALLEGED IN COME WAS ALREADY OFFERED IN SUBSEQUENT YEAR I.E. IN THE ASSESSMENT Y EAR 2014-15 MUCH BEFORE THE INITIATION OF ASSESSMENT PROCEEDING S. THE ASSESSEE ITA NO.219/IND/2018 M/S. SHUKLA CONSTRUCTION CO. P. LTD., BHOPAL 5 HAS DECLARED INTEREST INCOME AT RS.17,74,500/- REFL ECTED IN FORM NO.26AS. THUS, MUCH HIGHER INTEREST INCOME WAS DIS CLOSED IN THE SUBSEQUENT YEAR. THE DIFFERENCE IN INCOME AROSED D UE TO DELAYED INTIMATION BY THE BANK. HENCE, THE INCOME WAS OFFE RED IN SUBSEQUENT YEAR. THUS, THERE IS NO CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. 7. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (DR) VEHEMENTLY OPPOSED THE SUBMISSIONS AND RELIED ON THE JUDGMENT OF HON'BLE SUPREME COURT RENDERED IN THE CASE OF M/S SUNDARAM FINANCE LTD. VS. DY. COMMISSIONER OF INCOME TAX. IT IS CONTENDE D THAT IN PURSUANCE OF NOTICE U/S 271(1)(C) OF THE ACT, THE A SSESSEE FILED REPLY AND NO OBJECTION WAS RAISED REGARDING NOTICE BEING DEFECTIVE BEFORE THE A.O. OR BEFORE LD. CIT(A). HE CONTENDED THAT A T SUCH A BELATED STAGE, SUCH OBJECTION REGARDING LEGALITY OF NOTICE SHOULD NOT BE ENTERTAINED AS NO PREJUDICE WAS CAUSED TO THE ASSES SEE. 8. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GOING THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE HAS ASSAILED THE PENALTY ORDER BOTH ON LEGAL GROUND AS WELL AS ON MERIT. IT IS THE CONTENTION O F THE ASSESSEE THAT THE INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT IS BAD ITA NO.219/IND/2018 M/S. SHUKLA CONSTRUCTION CO. P. LTD., BHOPAL 6 IN LAW. AS THE A.O. HAS NOT RECORDED THE REQUISITE SATISFACTION AND ALSO ISSUED NOTICE U/S 271(1)(C) OF THE ACT IS DEFE CTIVE AS NO SPECIFIC CHARGE IS MENTIONED. IT IS ARGUED ON BEHALF OF THE ASSESSEE THAT IN THE LIGHT OF THE JUDGEMENT OF THE HON'BLE JURISDICT IONAL HIGH COURT RENDERED IN THE CASE OF PCIT VS. KULWANT SINGH BHAT IA (SUPRA), PENALTY CANNOT BE SUSTAINED. HE FURTHER SUBMITTED THAT UNDER THE IDENTICAL FACTS, THIS TRIBUNAL HAS QUASHED THE PENA LTY ORDER IN CATENA OF CASES FOLLOWING THE JUDGEMENT OF THE HON' BLE JURISDICTIONAL HIGH COURT. FURTHER, IT IS CONTENDED THAT LOOKING TO THE FACTS OF THE PRESENT CASE, PENALTY CANNOT EVEN BE SUSTAINED ON M ERIT. 9. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO TH E FACTS OF THE CASE LAW CITED AND ARGUMENT ADVANCED BY THE RESPECT IVE REPRESENTATIVES OF THE PARTIES. BEFORE ADVERTING T HE RIVAL SUBMISSIONS, THE RELEVANT PROVISION OF LAW ARE REPR ODUCED AS UNDER FOR THE SAKE OF CLARITY:- SECTION 271(1)(C) OF THE ACT: 271(1) IF THE [ASSESSING] OFFICER OR THE [COMMISSI ONER (APPEALS)] [OR THE [PRINCIPAL COMMISSIONER OR] COMMISSIONER] IN THE CO URSE OF ANY PROCEEDINGS UNDER THIS ACT, IS SATISFIED THAT ANY PERSON (A) [***] (B) HAS [***] FAILED TO COMPLY WITH A NOTICE [UNDER SUB -SECTION (2) OF SECTION 115 WD OR UNDER SUB-SECTION (2) OF SECTION 115WE OR] UN DER SUB-SECTION (1) OF ITA NO.219/IND/2018 M/S. SHUKLA CONSTRUCTION CO. P. LTD., BHOPAL 7 SECTION 142 OR SUB-SECTION (2) OF SECTION 143 [OR F AILS TO COMPLY WITH A DIRECTION ISSUED UNDER SUB-SECTION (2A) OF SECTION 142] OR (C) HAS CONCEALED THE PARTICULARS OF HIS INCOME OR [*** ] FURNISHED INACCURATE PARTICULARS OF [SUCH INCOME, OR] (D) HAS CONCEALED THE PARTICULARS OF THE FRINGE BENEFIT S OR FURNISHED INACCURATE PART6ICULARS OF SUCH FRINGE BENEFITS,] HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY,-- (I) [***] (II) IN THE CASES REFERRED TO IN CLAUSE (B), [IN ADDITIO N TO TAX, IF ANY, PAYABLE] BY HIM, [A SUM OF TEN THOUSAND RUPEES] FOR EACH SUCH FAILURE;] (III) IN THE CASES REFERRED TO IN CLAUSE (C) [OR CLAUSE ( D)], [IN ADDITION TO 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 FRINGE BENEFITS] OR THE FURNISHING OF INACCURATE PA RTICULARS OF SUCHJ INCOME [OR FRINGE BENEFITS]. SECTION 274 OF THE ACT. (1) NO ORDER IMPOSING A PENALTY UNDER THIS CHAPTER SHAL L BE MADE UNLESS THE ASSESSEE HAS BEEN HEARD, OR HAS BEEN GIV EN A REASONABLE OPPORTUNITY OF BEING HEARD. (2) NO ORDER IMPOSING A PENALTY UNDER THIS CHAPTER SHAL L BE MADE (I) BY THE INCOME-TAX OFFICER, WHERE THE PENALTY EXCEED S TEN THOUSAND RUPEES; (II) BY THE ASSISTANT COMMISSIONER [OR DEPUTY COMMISSION ER], WHERE THE PENALTY EXCEEDS TWENTY THOUSAND RUPEES, EXCEPT WITH THE PRIOR APPROVAL OF THE [JOINT] COMMI SSIONER. (3) AN INCOME-TAX AUTHORITY ON MAKING AN ORDER UNDER TH IS CHAPTER IMPOSING A PENALTY, UNLESS HE IS HIMSELF THE ASSESS ING OFFICER, SHALL FORTHWITH SEND A COPY OF SUCH ORDER TO THE AS SESSING OFFICER.] 10. NOW COMING TO THE OBJECTION OF THE ASSESSEE TH AT NOTICE IS DEFECTIVE, THE IMPUGNED NOTICE IS REPRODUCED AS UND ER: ITA NO.219/IND/2018 M/S. SHUKLA CONSTRUCTION CO. P. LTD., BHOPAL 8 11. FROM THE ABOVE, IT IS EVIDENT THAT NOTICE SO I SSUED DOES NOT DISCLOSE ANY CHARGE. THIS WAS NOT SO IN THE CA SE BEFORE THE ITA NO.219/IND/2018 M/S. SHUKLA CONSTRUCTION CO. P. LTD., BHOPAL 9 HON'BLE KARNATAKA HIGH COURT. IN THAT CASE, NOTICE WAS FOR BOTH THE CHARGES. HOWEVER, WE FIND THAT NO SUCH OBJECTI ON WAS RAISED BEFORE THE AUTHORITIES BELOW BY THE ASSESSEE. HON' BLE KARNATAKA HIGH COURT IN THE CASE OF SUNDARAM FINANCE LIMITED VS. ACIT (SUPRA) HAS HELD AS UNDER: 14. WITH REGARD TO THE THIRD SUBSTANTIAL QUESTION OF LAW, WHICH HAS BEEN FRAMED FOR CONSIDERATION, FIRSTLY WE WISH TO POINT OUT THAT SUCH A CONTENTION WAS NEVER RAISED BY THE ASSESSEE AT ANY POINT OF TIME. THE ARGUMENT OF THE LEARNED COUNSEL FOR THE PETITIONER IS THAT THIS BEING A QUESTION OF LAW CAN BE ALLOWED TO BE R AISED AT THIS STAGE. TO SUPPORT HIS CONTENTION, LEARNED COUNSEL PLACED RELIANCE ON THE DECISION IN JINDAL EQUIPMENTS LEASING AND CONSU LTANCY SERVICES LTD., CASE. WE FIND THAT THE SAID DECISION DOES NO T IN ANY MANNER ASSIST THE CSE OF THE ASSESSEE FOR THE REASON THAT THE CONTENTION BEFORE THE HIGH COURT OF KARNATAKA WAS THAT INITIAL LY A QUESTION OF LAW WAS RAISED WITH REGARD TO THE ADDITION UNDER SE CTION 41 HAS NO APPLICABILITY TO THE FACTS OF THE CASE. THIS WAS T HE REASON FOR AMENDING THE MEMO OF APPEAL AND AS THE ATTEMPT OF T HE REVENUE WAS THAT THE SAID AMOUNT COULD STILL BE TREATED AS INCOME AT THE HANDS OF THE ASSESSEE WITHIN THE MEANING OF SECTION 28 OF THE ACT IS NOT APPLICABLE. THE COURT, HAVING CONSIDERED THE Q UESTION WHICH WAS RAISED, HELD THAT THOUGH THE TRIBUNAL HELD THAT SECTION 41(1) DOES NOT APPLY TO WHICH LEGAL POSITION WAS CONCEDED BY THE COUNSEL FOR REVENUE. REVENUE STILL WANTED THAT THE ADDITIO N BE SUSTAINED UNDER PROVISIONS OF CLAUSE (IV) OF SECTION 28 OF TH E ACT AND THE SUBMISSIONS WAS ON THESE VERY FACTS, PROVISIONS OF SECTIN 28(IV) OF THE ACT SHALL BE ATTRACTED, THIS WILL STILL HOLD TO BE A PURE QUESTION OF LAW AND THEREFORE, THE AMENDMENT OF THE GROUNDS SOU GHT FOR BY THE REVENUE WAS ALLOWED. 15. BEFORE US, THE ASSESSEE SEEKS TO CONTEND THAT T HE NOTICES ISSUED UNDER SECTION 274 R/W SECTION 271 OF THE ACT ARE VITIATED SINCE IT DID NOT SPECIFICALLY STATE THE GROUNDS MEN TIONED IN SECTION 271(1)(C) OF THE ACT. 16. WE HAVE PERUSED THE NOTICES AND WE FIND THAT TH E RELEVANT COLUMNS HAVE BEEN MARKED, MORE PARTICULARLY, WHEN T HE CASE AGAINST THE ASSESSEE IS THAT THEY HAVE CONCEALED PA RTICULARS OF INCOME AND FURNISHED INACCURATE PARTICULARS OF INCO ME. THEREFORE, ITA NO.219/IND/2018 M/S. SHUKLA CONSTRUCTION CO. P. LTD., BHOPAL 10 THE CONTENTION RAISED BY THE ASSESSEE IS LIABLE TO BE REJECTED ON FACTS. THAT APART, THIS ISSUE CAN NEVER BE A QUEST ION OF LAW IN THE ASSESSEES CASE, AS IT IS PURELY A QUESTION OF FACT . APART FROM THAT, THE ASSESSEE HAD AT NO EARLIER POINT OF TIME RAISED THE PLEA THAT ON ACCOUNT OF A DEFECT IN THE NOTICE, THEY WERE PUT TO PREJUDICE. ALL VIOLATIONS WILL NOT RESULT IN NULLIFYING THE ORDERS PASSED BY STATUTORY AUTHORITIES. IF THE CASE OF THE ASSESSEE IS THAT T HEY HAVE BEEN PUT TO PREJUDICE AND PRINCIPLES OF NATURAL JUSTICE WERE VI OLATED ON ACCOUNT OF NOT BEING ABLE TO SUBMIT AN EFFECTIVE REPLY, IT WOULD BE A DIFFERENT MATTER. THIS WAS NEVER THE PLEA OF THE ASSESSEE EI THER BEFORE THE ASSESSING OFFICER OR BEFORE THE FIRST APPELLATE AUT HORITY OR BEFORE THE TRIBUNAL OR BEFORE THIS COURT WHEN THE TAX CASE APP EALS WERE FILED AND IT WAS ONLY AFTER 10 YEARS, WHEN THE APPEALS WE RE LISTED FOR FINAL HEARING, THIS ISSUE IS SOUGHT TO BE RAISED. THUS ON FACTS, WE COULD SAFELY CONCLUDE THAT EVEN ASSUMING THAT THERE WAS DEFECT IN THE NOTICE, IT HAD CAUSED NO PREJUDICE TO THE ASSES SEE AND THE ASSESSEE CLEARLY UNDERSTOOD WHAT WAS THE PURPORT AN D IMPORT OF NOTICE ISSUED UNDER SECTION 274 R/W SECTION 271 OF THE ACT. THEREFORE, PRINCIPLES OF NATURAL JUSTICE CANNOT BE READ IN ABSTRACT AND THE ASSESSEE, BEING A LIMITED COMPANY, HAVING W IDE NETWORK IN VARIOUS FINANCIAL SERVICES, SHOULD DEFINITELY BE PR ECLUDED FROM RAISING SUCH A PLEA AT THIS BELATED STAGE. 17. THUS, FOR THE ABOVE REASONS, SUBSTANTIAL QUESTI ONS OF LAW NOS.1 AND 2 ARE ANSWERED AGAINST THE ASSESSEE AND IN FAVO UR OF THE REVENUE. THE ADDITIONAL SUBSTANTIAL QUESTION OF LA W, WHICH WAS FRAMED IS REJECTED ON THE GROUND THAT ON FACTS THE SAID QUESTION DOES NOT ARISE FOR CONSIDERATION AS WELL AS FOR THE REAS ONS SET OUT BY US IN THE PRECEDING PARAGRAPHS. 12. IN THE LIGHT OF THE JUDGEMENT OF THE HON'BLE K ARNATAKA HIGH COURT (SUPRA), THE PLEA OF THE ASSESSEE REGARD ING NOTICE BEING DEFECTIVE CANNOT BE ENTERTAINED AT THIS STAGE. AS IN THE PRESENT CASE AS WELL THE ASSESSEE DID NOT OBJECT AGAINST THE NOT ICE BEING DEFECTIVE RATHER IT FILED REPLY MAKING AVERMENTS ON MERIT. T HE ASSESSEE OUGHT TO HAVE OBJECTED AGAINST THE NOTICE BEING DEFECTIVE AT THE FIRST INSTANCE. 13. NOW COMING TO THE MERIT, IT IS STATED THAT NON -DISCLOSURE OF INTEREST INCOME WAS NOT DELIBERATE RATHER BANKER OF THE ASSESSEE ITA NO.219/IND/2018 M/S. SHUKLA CONSTRUCTION CO. P. LTD., BHOPAL 11 REPORTED IT BELATEDLY. IT WAS NOT THE FAULT OF THE ASSESSEE. THE ASSESSEE HAS SUBMITTED THAT INCOME WAS DULY OFFERED IN THE NEXT YEAR EVEN BEFORE THE INITIATION OF ASSESSMENT PROCE EDINGS. HE RELIED ON THE JUDGEMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF PRICE WATER HOME COOPER PVT. LTD. VS. CIT IN CIVIL APPEAL NO.6924/2012. LOOKING TO THE PECULIARITY OF FACTS OF THE PRESENT CASE AND COUPLED WITH THE FACT THAT AFTER DISCOVERI NG THE MISTAKE OFFERED INCOME FOR TAX IN THE SUBSEQUENT YEAR. UND ER THESE FACTS, LEVY OF PENALTY WOULD NOT BE JUSTIFIED. THEREFORE, RESPECTFULLY FOLLOWING THE JUDGEMENT OF HON'BLE SUPREME COURT IN THE CASE OF PRICE WATER HOME COOPER PVT. LTD. VS. CIT (SUPRA), WE HEREBY DIRECT THE A.O. TO DELETE PENALTY. THIS GROUND OF ASSESSE ES APPEAL IS ALLOWED. 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 21.08. 2019. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 21/08/2019 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE