Dr. Brajbala Tiwari, Indore V. Deputy Commissioner of Income Tax, Central -1, Indore

ITA 684/Ind/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9054 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 01-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJ E EB KUMAR
• Assessee Lawyers: ANIL KHANDELWAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 271(1)(c); 153A; 201; 274; 132

Judgement Text

DR. BRAJBALA TIWARI ITA NO.682 TO 684/IND/2018 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HON'BLEBLE SHRI KUL BHARAT, JUDICIAL MEMBER AND HON'BLEBLE SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.682 TO 684/IND/2018 ASSESSMENT YEARS 2008-09,2011-12 & 2013-14 REVENUE BY SHRI RAJ E EB KUMAR, SR .DR ASSESSEE BY SHRI ANIL KHANDELWAL, CA DATE OF HEARING 1 2 .0 9 . 201 9 DATE OF PRONOUNCEMENT 27 .0 9 . 201 9 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED APPEALS ARE FILED AT THE INSTAN CE OF ASSESSEE PERTAINING TO ASSESSMENT YEARS 2008-09, 2 011-12 & 2013-14 ARE DIRECTED AGAINST THE ORDERS OF LD. COMM ISSIONER OF INCOME TAX (APPEALS)-III (IN SHORT LD.CIT(A)], IN DORE DATED 13.06.2018 WHICH ARE ARISING OUT OF THE ORDER U/S 2 71(1)(C) OF THE DR. BRAJBALA TIWARI, LIFE CARE HOSPITAL LTD, PLOT NO.2, SCHEME NO.78, PART-II, VIJAY NAGAR, INDORE VS. DCIT , CENTRAL - 1 , INDORE ( APPELLANT ) (RESPONDENT ) PAN ABAPT7401P DR. BRAJBALA TIWARI ITA NO.682 TO 684/IND/2018 2 INCOME TAX ACT 1961(IN SHORT THE ACT) DATED 28.09 .2016 FRAMED BY DCIT (CENTRAL)-1, INDORE. 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL; ITA NO.682/IND/2018 ASSESSMENT YEAR 2008-09 (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE LD. CIT (A) III ERRED IN LAW IN IMPOSING PENALTY ON WRONG ASSUMPTIONS BAS ED ON PATENTLY WRONG FACTS WHILE CONFIRMING LEVY OF PENALTY U/S 27 1(1)(C) AND APPLICATION OF EXPLANATION. 5 A OF SECTION 271(1)(C) THEREON. (2) 0N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT (A) III ERRED IN HEAVILY RELYING ON THE SEIZED DOCUMENT BS-16 THO UGH NOT PERTAINING TO RELEVANT ASSESSMENT YEAR WHILE CONFIRMING PENALTY L EVIED U/S 271(1) (C) IN VIEW OF THE FACT THAT [EARNED A.O. DID NOT CONSI DER BS-16 IN PENALTY ORDER. (3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, LD. CIT (A)III COMMITTED BREACH OF NATURAL JUSTICE WHILE CONSIDERI NG SEIZED BS - 16 IN NOT GIVING OPPORTUNITY TO APPELLANT TO EXPLAIN HER STAND EFFECTIVELY ON THE SAME, CAUSING PREJUDICE TO APPELLANT. (4) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE LD. CIT (A)-III ERRED IN LAW AND ON FACTS IN CONFIRMING PENALTY LEVIED U/ S 271(1) (C). (5) APPELLANT RESERVES RIGHT TO ADD, ALTER, AMEND O NLY GROUNDS OF APPEAL. ITA NO.683/IND/2018 ASSESSMENT YEAR 2011-12 (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE LD. CIT (A) III ERRED IN LAW IN IMPOSING PENALTY ON WRONG ASSUMPTIONS BAS ED ON PATENTLY DR. BRAJBALA TIWARI ITA NO.682 TO 684/IND/2018 3 WRONG FACTS WHILE CONFIRMING LEVY OF PENALTY U/S 27 1(1)(C) AND APPLICATION OF EXPLANATION. 5 A OF SECTION 271 (1 ) (C) THEREON . (2) 0N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT (A) III ERRED IN HEAVILY RELYING ON THE SEIZED DOCUMENT BS-16 THO UGH NOT PERTAINING TO RELEVANT ASSESSMENT YEAR WHILE CONFIRMING PENALTY L EVIED U/S 271 (1) (C) IN VIEW OF THE FACT THAT [EARNED A.O. DID NOT CONSI DER BS - 16 IN PENALTY ORDER. (3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, LD. CIT (A)III COMMITTED BREACH OF NATURAL JUSTICE WHILE CONSIDERI NG SEIZED BS-16 IN NOT GIVING OPPORTUNITY TO APPELLANT TO EXPLAIN HER STAND EFFECTIVELY ON THE SAME, CAUSING PREJUDICE TO APPELLANT. (4) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE LD. CIT (A) -III ERRED IN LAW AND ON FACTS IN CONFIRMING PENALTY LEVIED U/ S 271 (1) (C). (5) APPELLANT RESERVES RIGHT TO ADD, ALTER, AMEND O NLY GROUNDS OF APPEAL. ITA NO.684/IND/2018 ASSESSMENT YEAR 2013-14 (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE LD. CIT (A) III ERRED IN LAW IN IMPOSING PENALTY ON WRONG ASSUMPTIONS BAS ED ON PATENTLY WRONG FACTS WHILE CONFIRMING LEVY OF PENALTY U/S 27 1(1)(C) AND APPLICATION OF EXPLANATION. 5 A OF SECTION 271 (1 )(C) THEREON. (2) 0N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT (A) III ERRED IN HEAVILY RELYING ON THE SEIZED DOCUMENT BS-16 THO UGH NOT PERTAINING TO RELEVANT ASSESSMENT YEAR WHILE CONFIRMING PENALTY L EVIED U/S 271 (1) (C) IN VIEW OF THE FACT THAT [EARNED A.O. DID NOT CONSI DER BS - 16 IN PENALTY ORDER. (3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, LD. CIT (A)III DR. BRAJBALA TIWARI ITA NO.682 TO 684/IND/2018 4 COMMITTED BREACH OF NATURAL JUSTICE WHILE CONSIDERI NG SEIZED BS-16 IN NOT GIVING OPPORTUNITY TO APPELLANT TO EXPLAIN HER STAND EFFECTIVELY ON THE SAME, CAUSING PREJUDICE TO APPELLANT. (4) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE LD. CIT (A)-III ERRED IN LAW AND ON FACTS IN CONFIRMING PENALTY LEVIED U/ S 271(1) (C). (5) APPELLANT RESERVES RIGHT TO ADD, ALTER, AMEND O NLY GROUNDS OF APPEAL. 3. AS THE ISSUES RAISED IN BOTH THE APPEALS ARE SIM ILAR IN NATURE RELATING TO THE SAME ASSESSEE THEY ARE HEARD TOGETH ER AND BEING DISPOSED OFF FOR SAKE OF CONVENIENCE AND BREVITY. 4. DURING THE COURSE OF HEARING LD. COUNSEL FOR THE ASSESSEE RAISED ADDITIONAL LEGAL GROUND CHALLENGING THE VALI DITY OF NOTICE ISSUED U/S 274 R.W.S. 271(1)(C) OF THE ACT OF THE A CT CLAIMING IT TO BE ILLEGAL AND BAD IN LAW. WE FIND THAT THOUGH THE A SSESSEE HAS NOT RAISED THE LEGAL GROUND AT THE TIME OF FILING THE A PPEAL BUT IN OUR CONSIDERED OPINION AND FOLLOWING THE RATIO OF JUDGM ENT OF HON'BLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CO MPANY LIMITED 229 ITR 383(SC) AS WELL AS IN THE CASE OF JUTE COR PORATION OF INDIA 178 ITR 668 (SC) THE ADDITIONAL LEGAL GROUNDS RAISE D BEFORE US DESERVES TO BE ADMITTED FOR ADJUDICATION, IF THE SA ME INVOLVES POINT OF LAW WHICH DOES NOT REQUIRE ANY FURTHER INVESTIGA TION OF FACTS. IT IS DR. BRAJBALA TIWARI ITA NO.682 TO 684/IND/2018 5 ALSO CLEAR THAT THE ISSUES RAISED IN THE ADDITIONAL GROUND OF APPEAL GOES TO THE ROOT OF THE JURISDICTION OF THE ASSESSI NG OFFICER TO LEVY THE PENALTY U/S 271(1)(C) OF THE ACT AND THEREFORE THE SAME ARE RELEVANT TO DETERMINE THE LIABILITY OF THE ASSESSEE FOR PENALTY U/S 271(1)(C) OF THE ACT. ACCORDINGLY THE ADDITIONAL GROUND IS ADMITTED FOR ADJUDICATION. 5. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECO RDS ARE THAT THE ASSESSEE IS A DOCTOR SPECIALIZED IN GYNECOLOGIST AN D INFERTILITY AND MANAGING DIRECTOR OF LIFE CARE HOSPITAL LIMITED. S HE IS PROVIDED A RESIDENTIAL ACCOMMODATION IN THE HOSPITAL PREMISES. A SEARCH U/S 132 WERE CARRIED OUT AT THE HOSPITAL AS WELL AS RES IDENTIAL PREMISES OF DR. BRAJBALA TIWARI ON 04.10.2013. ASSESSMENTS U /S 153A OF THE ACT WERE COMPLETED ON 22.03.2016. DURING THE COURS E OF ASSESSMENT PROCEEDINGS THE APPELLANT VOLUNTARILY OF FERED ESTIMATED ADDITIONAL INCOME FROM CLINIC. AFTER CONSIDERING T HE SUBMISSIONS OF THE ASSESSEE, ASSESSMENTS WERE COMPLETED FOR THE Y EARS UNDER APPEAL AFTER MAKING THE ADDITIONS ON VARIOUS COUNTS . 6. THE PENALTY PROCEEDINGS WERE INITIATED U/S 271(1 )(C ) FOR ASSESSMENT YEARS 2008-09, 2011-12 AND 2013-14. IN T HE PENALTY DR. BRAJBALA TIWARI ITA NO.682 TO 684/IND/2018 6 PROCEEDINGS AFTER CONSIDERING THE SUBMISSIONS OF TH E ASSESSEE LD. A.O LEVIED PENALTY OF RS.50,000/-, RS.2,10,000/- AN D RS.2,60,000/- U/S 271(1)(C) OF THE ACT. AGAINST THE PENALTY ORDE R ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND COULD NOT SU CCEED. 7. AGGRIEVED ASSESSEE IS NOW IN APPEAL BEFORE THE T RIBUNAL CHALLENGING THE LEGALITY OF THE PENALTY PROCEEDING S AS WELL AS RAISING GROUNDS ON MERITS CHALLENGING THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT AT RS. 50,000/-, RS.2,10,000/- AND RS.2,60,000/-. 8. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AS PER PROVISIONS OF SECTION 271(1)(C) OF THE ACT THE PENALTY CAN BE INI TIATED EITHER FOR CONCEALING THE PARTICULARS OF INCOME OR FOR FURNISH ING INACCURATE PARTICULARS OF INCOME, WHEREAS THE LD.A.O HAS NOT R ECORDED ANY CHARGE ON THE ASSESSEE, AS TO WHETHER PENALTY IS TO BE LEVIED FOR FURNISHING INACCURATE PARTICULARS OF INCOME OR CON CEALING THE PARTICULARS OF INCOME. PLACING RELIANCE ON THE JU DGMENTS MENTIONED IN THE WRITTEN SUBMISSION WHICH MAINLY IN CLUDES JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE O F PCIT VS KULWANT SINGH BHATIA ITA NO.9 OF 2018 DATED 9.5.201 8 , THE LD. DR. BRAJBALA TIWARI ITA NO.682 TO 684/IND/2018 7 COUNSEL FOR THE ASSESSEE CONTENDED THAT THE LD.A.O HAS FAILED IN COMPLY THE PROVISIONS OF SECTION 271(1)(C) OF THE A CT BY INITIATING THE PENALTY PROCEEDINGS WITH NO SPECIFIC CHARGE. RELIA NCE WAS ALSO PLACED ON INDORE TRIBUNAL DECISION IN THE CASE OF VARAD MEHTA V/S DCIT-1 BHOPAL ITA NO.693/IND/16 DATED 06.12.2018. 9. PER CONTRA DEPARTMENTAL REPRESENTATIVE VEHEMENTL Y ARGUED SUPPORTING THE ORDERS OF LOWER AUTHORITIES. 10. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. THE ISSUES RAISED BY THE ASSESSE E REVOLVES AROUND THE LEVY OF PENALTY U/S 271(1)(C)AT RS. 50, 000/-, RS.2,10,000/- AND RS.2,60,000/-. THE ASSESSEE RAISE D A LEGAL ISSUE PLEADING THAT LD. A.O HAS WRONGLY INITIATED THE PEN ALTY PROCEEDINGS BY NOT SPECIFYING THE CHARGE FOR LEVY OF PENALTY I. E. WHETHER THE PENALTY PROCEEDINGS HAS BEEN INITIATED FOR CONCEALI NG PARTICULARS OF INCOME OR FOR FURNISHING THE INACCURATE PARTICULARS OF INCOME. IT WAS ALSO PLEADED BY THE LD. COUNSEL FOR THE ASSESSE E THAT THE LD. A.O REMAINED SILENT BY NOT SPECIFYING AS FOR WHICH CHARGE THE PENALTY PROCEEDINGS HAVE BEEN INITIATED. DR. BRAJBALA TIWARI ITA NO.682 TO 684/IND/2018 8 11. TO EXAMINE THIS FACT WE HAVE GONE THROUGH THE I MPUGNED NOTICE ISSUED ON 30.10.2012 FOR INITIATING THE PENA LTY PROCEEDINGS U/S 271(1)(C) OF THE ACT FOR ASSESSMENT YEARS 2008 -09, 2011-12 AND 2013-14. FOR REFERENCE WE REPRODUCE BELOW THE N OTICE U/S 274 R.W.S. 271(1)(C) OF THE ACT FOR ASSESSMENT YEAR 200 8-09; OFFICE OF THE DEPUTY COMMISSIONER OF INCOME TAX (CENTRAL)-L, INDORE ROOM NO. 101, AAYKARBHAWAN(MAIN), OPP. WHITECHURCH, INDORE F. NO. DCIT-(CENT.)-1/PENALTY/16-17 DATED: 16/09/2 016 P AN- ABAPT7 401 P SMT. BRAJBALA TIWARI LIFE CARE HOSPITAL SCHEME NO.78, PART-II, VIJAYNAGAR, INDORE. TO MADAM, SUB: PENALTY FIXATION U/S 271(1)(C} R.W.S. 129 OF THE INCOME TAX ACT, 1961- REG: PLEASE REFER TO THE ABOVE THE FOLLOWING PENALTY PROCEEDINGS ARE INITIATED DUR ING ASSESSMENT AS MENTIONED BELOW. DR. BRAJBALA TIWARI ITA NO.682 TO 684/IND/2018 9 SL.NO. A.Y SECTION PENALTY INITIATED ON 1 2008 - 09 271(1)(C) 22/03/2016 YOU ARE REQUESTED TO APPEAR BEFORE THE UNDERSIGNED ON 19/09/2016 AT 11 A.M. IN MY OFFICE AT ROOM NO. 101, AAYAKAR BHAWAN, MAIN BUILDING, OPP. WHITE CHURCH, INDORE PERSONALLY OR THROUGH AUTHORIZED REPRESENTAT IVE TO SHOW CAUSE AS TO WHY PENALTY U/S 271(I)(C) OF THE INCOME TAX ACT, 1961 BE NOT LEVIED AGAINST YOU. IF YOU DO NOT WISH TO APPEAR PERSONALLY, YOU MAY SEND YOUR WRITTEN REPLY ON OR BEFORE ABOVE MENTIONED DATE. IF ANY RESPONSE IS NOT RECEIVED IN THE OFFICE OF THE UNDER SIGNED IT WILL BE ASSUMED THAT YOU HAVE NOTHING TO SAY IN THI S REGARD. IT IS TO BE BROUGHT TO YOUR NOTICE THAT THERE IS A CHANGE IN INCUMBENT HENCE THIS NOTICE IS ISSUED TO PROVIDE OPPORTUNITY OF BEING HEARD TO THE ASSESSE. SD/- ( AVANEESH TIWARI ) DEPUTY GOMMISSFSONEROF1NCO ME TAX-(CENTRAL)-1 INDORE 12. FROM PERUSAL OF THE ABOVE SHOW CAUSE NOTICES WE FIND THAT THE LD.A.O HAS MERELY MENTIONED THE SECTION BUT THE SPE CIFIC CHARGE I.E. WHETHER THE PENALTY HAVE BEEN INITIATED FOR CONCEAL MENT OF PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME HAS NOT BEEN MENTIONED. NOW WHETHER SUCH TY PE OF NOTICE WHICH DOES NOT SPEAK ABOUT THE SPECIFIC CHARGE LEVE LED AGAINST THE ASSESSEE IS VALID AND TENABLE IN THE EYES OF LAW N EEDS TO BE EXAMINED IN LIGHT OF JUDICIAL PRECEDENTS. DR. BRAJBALA TIWARI ITA NO.682 TO 684/IND/2018 10 13. WE FIND THAT SIMILAR ISSUE CAME UP FOR ADJUDICA TION BEFORE US IN THE CASE OF VARAD MEHTA ITA NO.693/IND/16 DATED 06.12.2018 (SUPRA) WHEREIN WE HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AFTER RELYING ON THE JUDGMENT OF JURISDICTIONAL HIG H COURT IN THE CASE OF SHRI KULWANT SINGH BHATIA (SUPRA) OBSERVING AS FOLLOWS. RELEVANT EXTRACT OF OUR DECISION IS REPRODUCED BELO W; 14. WE FIND THAT SIMILAR ISSUE CAME UP BEFORE THE JURISDICTIONAL HIGH COURT IN THE CASE OF SHRI KULWANT SINGH BHATIA (SUP RA) WHEREIN THE HON'BLE COURT DISCUSSED THE JUDGMENT OF HON'BLE HIGH COURT IN THE CASE OF CIT V/S MANJUNATHA COTTON GINNING FACTORY (SUPRA) AND CIT V /S SSAS EMERALAD MEADOWS (SUPRA) HELD THAT ON DUE CONSIDERATION OF THE ARGUMENTS OF THE LD. COUNSEL FOR THE APPELLANT, SO ALSO CONSIDERING THE FACT THAT THE GROUND MENTIONED IN SHOW CAUSE NOTICE WOULD NOT SPECIFY TH E REQUIREMENT OF LAW, AS NOTICE WAS NOT SPECIFIC, WE ARE OF THE VIEW THAT LD. TRIBUNAL HAS RIGHTLY ALLOWED THE APPEAL OF THE ASSESSEE AND SET ASIDE TH E ORDER OF PENALTY ENFORCED BY THE AUTHORITY. 15. SIMILARLY IN THE CASE OF CIT V/S MANJUNATHA GIN NING FACTORY, HON'BLE HIGH COURT OF KARNATAKA HELD THAT THE NOTI CE ISSUED U/S 274 R.W.S. 271(1)(C) OF THE ACT SHOULD SPECIFICALLY MEN TION THE GROUND IN SECTION 271(1)(C) WHETHER CONCEALMENT OF INCOME OR FOR FURN ISHING IN ACCURATE PARTICULARS OF INCOME. SENDING PRINTED FORM WHERE ALL GROUND OF SECTION 271(1)(C ) WOULD NOT MENTIONED THE SPECIFIC REQUIRE MENT OF LAW. ASSESSEE SHOULD KNOW THE GROUNDS ON WHICH HE HAS CHARGED SPE CIFIC OTHERWISE OPPORTUNITIES OF NATURAL JUSTICE DENIED. ON THE BA SIS OF SUCH PROCEEDINGS NO PENALTY COULD BE IMPOSED TO THE ASSESSEE. TAKIN G UP THE PENALTY PROCEEDINGS ON ONE LIMB AND FINDING THE ASSESSSEE I N ANOTHER LIMB IS BAD IN LAW. THOUGH IN THE INSTANT APPEAL THE LD. A.O HAS MADE PROPER DR. BRAJBALA TIWARI ITA NO.682 TO 684/IND/2018 11 SATISFACTION IN THE BODY OF THE ASSESSMENT ORDER BU T IN THE NOTICE ISSUED U/S 274 R.W.S. 271(1)(C) OF THE ACT HE FAILED TO ME NTION THE LIMBS FOR WHICH PENALTY PROCEEDINGS HAVE BEEN INITIATED. IT IS THE NEGLIGENCE OF THE LD. A.O IN NOT MAKING PROPER SPECIFIC CHARGE IN THE NOTICE U/S 274 ABOUT THE ADDITION FOR WHICH PENALTY PROCEEDINGS HAVE BEEN IN ITIATED. LD. A.O SHOULD BE CLEAR AS TO WHETHER THE ALLEGED ADDITION GOES UNDER THE LIMB OF CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHI NG INACCURATE PARTICULARS OF INCOME. MERELY ISSUING NOTICE IN GENERAL PROFO RMA WILL NEGATE THE VERY PURPOSE OF NATURAL JUSTICE AS HELD BY THE HON'BLE APEX COURT IN THE CASE OF DILIP N SHRAF 161 TAXMANN 218 THAT THE QUASI- CRI MINAL PROCEEDINGS U/S 271(1)(C) OF THE ACT OUGHT TO COMPLY WITH THE PRINC IPLES OF NATURAL JUSTICE. 14. WE THEREFORE RESPECTFULLY FOLLOWING ABOVE REFER RED JUDGMENTS AND IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE ARE O F THE CONSIDERED VIEW THAT THE ALLEGED NOTICE ISSUED U/S 274 R.W.S. 271(1 )(C) OF THE ACT DATED 31.12.10 IS INVALID, UNTENABLE AND SUFFERS FROM THE INFIRMITY OF NON APPLICATION OF MIND BY THE ASSESSING OFFICER. WE AC CORDINGLY DIRECT TO DELETE THE PENALTY OF RS.16,00,000/- IMPOSED U/S 27 1(1)(C) ON THIS GROUND ITSELF. WE ACCORDINGLY ALLOW THE ADDITIONAL GROUND RAISED BY THE ASSESSEE ON THE LEGALITY OF THE PENALTY PROCEEDINGS INITIATE D U/S 271(1)(C) OF THE ACT. SINCE THE PENALTY U/S 271(1)(C) ALSO HAS BEEN DEALT ON THE PRELIMINARY POINTS OTHER ARGUMENTS OF THE ASSESSEE DEALING WITH THE MERITS OF THE LEVY OF PENALTY ARE NOT BEEN DEALT WITH, AS THE SAME ARE RENDERED ACADEMIC IN NATURE AND THE APPEAL OF THE ASSESSEE FOR THE ASSES SMENT YEAR 2008-09 IS ALLOWED. 14. WE THEREFORE RESPECTFULLY FOLLOWING ABOVE REFER RED JUDGMENTS AND IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CAS E ARE OF THE CONSIDERED VIEW THAT THE ALLEGED NOTICE ISSUED U/S 274 R.W.S. 271(1)(C) OF THE ACT DATED 22.03.2016 IS INVALID, U NTENABLE AND DR. BRAJBALA TIWARI ITA NO.682 TO 684/IND/2018 12 SUFFERS FROM THE INFIRMITY OF NON APPLICATION OF MI ND BY THE ASSESSING OFFICER. WE ACCORDINGLY DIRECT TO DELETE THE PENALTY OF AT RS. 50,000/-, RS.2,10,000/- AND,RS.2,60,000/- FOR A SSESSMENT YEARS 2008-09, 2011-12 AND 2013-14 RESPECTIVELY IMP OSED U/S 271(1)(C) ON THIS LEGAL GROUND ITSELF. WE ACCORDI NGLY ALLOW THE ADDITIONAL GROUND RAISED BY THE ASSESSEE ON THE LEG ALITY OF THE PENALTY PROCEEDINGS INITIATED U/S 271(1)(C) OF THE ACT. SINCE THE ISSUE OF PENALTY U/S 271(1)(C) ALSO HAS BEEN DEALT ON THE PRELIMINARY POINTS OTHER ARGUMENTS OF THE ASSESSEE DEALING WITH THE MERITS OF THE LEVY OF PENALTY ARE NOT BEEN DEALT WI TH, AS THE SAME ARE RENDERED ACADEMIC IN NATURE AND THUS THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEARS 2008-09, 2011-12 & 2013-14 ARE PARTLY ALLOWED. 15. IN THE RESULT THE LEGAL GROUND OF THE ASSESSEE IN FOR YEARS 2008-09, 2011-12 & 2013-14 ARE ALLOWED AND GROUNDS ON MERITS FOR ASSESSMENT YEAR 2008-09, 2011-12 & 2013-14 AR E DISMISSED AS INFRUCTUOUS. DR. BRAJBALA TIWARI ITA NO.682 TO 684/IND/2018 13 THE ORDER PRONOUNCED IN THE OPEN COURT ON 27.09.20 19. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 27 SEPTEMBER, 2019 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE