MRS. MALTI GUPTA, JALANDHAR V. INCOME TAX OFICER,WARD-III(4), JALANDHAR

ITA 757/ASR/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7101 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-01-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 14-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT MOHAN JINDAL
• Assessee Lawyers: P N ARORA
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Condonation of delay
• Section: 271(1)(c); 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP BENCH AT JALANDHAR BEFORE SHRI N.K. SAINI, VICE PRESIDENT AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO. 757/ASR./2017 (ASSESSMENT YEARS: 2008-09) MRS. MALTI GUPTA, EG-958/2, MOHALLA GOBINDGARH, JALANDHAR. VS. THE ITO, WARD III (4) JALANDHAR PAN AAQPG3205M (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI P.N. ARORA, ADVOCATE RESPONDENT BY: SHRI LALIT MOHAN JINDAL, D.R DATE OF HEARING: 15.01.2019 DATE OF PRONOUNCEMENT: 17.01.2019 O R D E R PER RAVISH SOOD, JM THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECT ED AGAINST THE ORDER PASSED BY THE CIT(A)-2, JALANDHAR, DATED 08.08.2017 WHICH IN TURN ARISES FROM THE ORDER PASSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'I.T. ACT'),DATED 29.3.201 7 FOR ASSESSMENT YEAR 2008-09. THE ASSESSEE ASSAILING THE ORDER OF THE C IT(A) HAS RAISED BEFORE US THE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING ON ORDE R LEVING PENALTY FOR CONCEALMENT WHICH WAS BAD IN LAW. 2. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE LE VY OF PENALTY U/S 271 (1) (C) FOR CONCEALMENT AT RS. P A G E | 2 ITA NO.757/ASR./2017 MRS. MALTI GUPTA, JALANDHAR 1,10,521/- WITHOUT APPRECIATING THE EXPLANATION GIVING INCLUDING RELEVANT CASE LAWS. 2. WE FIND THAT THE APPEAL FILED BY THE ASSESSING O FFICER INVOLVES A DELAY OF 24 DAYS. THE ASSESSEE HAS FILED AN APPLICATION S EEKING CONDONATION OF DELAY INVOLVED IN FILING OF THE PRESENT APPEAL. IT IS STATED BY THE ASSESSEE THAT THE ORDER OF THE CIT(A)-2, JALANDHAR, DATED 08.08.2 017 WHICH WAS RECEIVED BY HER ON 21.09.2017 WAS DELIVERED TO HER CHARTERED ACCOUNTANTS VIZ. M/S V.P VIJH & COMPANY, JALANDHAR IN THE LAST WEEK OF S EPTEMBER, 2017. THE LD. A.R EXPLAINING THE DELAY INVOLVED IN FILING OF THE APPEAL SUBMITTED THAT SH. V.P VIJH (PARTNER OF M/S V.P VIJH & COMPANY) WAS TA KEN UNWELL SINCE 27.09.2017 AND HAD THEREAFTER DUE TO MEDICAL COMPLI CATIONS EXPIRED ON 03.10.2017. THE LD. A.R SUBMITTED THAT THE OTHER PA RTNER OF M/S V.P VIJH & COMPANY VIZ. SH. SANDEEP VIJH (SON OF SH. V.P VIJH) DUE TO UNTIMELY DEMISE OF HIS FATHER COULD NOT ATTEND TO HIS OFFICE AND LO ST TRACK OF THE PENDING TAX MATTERS/LITIGATION. IT WAS SUBMITTED BY THE LD. A.R THAT AS THE DELAY IN FILING OF THE PRESENT APPEAL HAD OCCASIONED DUE TO THE AFO RESAID UNFORTUNATE CIRCUMSTANCES AND NOT FOR ANY LAPSES OR LACHES ON T HE PART OF THE ASSESSEE, THUS THE DELAY OF 24 DAYS INVOLVED IN FILING OF THE APPEAL MAY BE CONDONED. IN SUPPORT OF THE AFORESAID FACTS THE ASSESSEE HAS PLACED ON RECORD THE DEATH CERTIFICATE OF LATE SH. V.P VIJH. APART TH EREFROM, AN AFFIDAVIT OF SHRI SANDEEP VIJH, PARTNER OF M/S V.P. VIJH, WHEREIN THE LATTER HAD DULY CONFIRMED THE AFORESAID FACTUAL POSITION HAD ALSO B EEN FILED. 3. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE REASONS LEADING TO THE DELAY OF 24 DAYS IN FILING OF THE PRESENT APPEAL BY THE ASSESSEE BEFORE US. IN P A G E | 3 ITA NO.757/ASR./2017 MRS. MALTI GUPTA, JALANDHAR OUR CONSIDERED VIEW, AS THE DELAY OF 24 DAYS INVOLV ED IN FILING OF THE PRESENT APPEAL HAD OCCASIONED BECAUSE OF BONAFIDE REASONS, WE, THEREFORE, CONDONE THE SAME. 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE HAD FILED HER RETURN OF INCOME FOR A.Y 2008-09 ON 27.6.2008, DECL ARING TOTAL INCOME OF RS. 79,31,290/-. THE RETURN OF INCOME WAS INITIALLY PRO CESSED U/S 143(1) OF THE I.T. ACT. SUBSEQUENTLY, THE CASE WAS SELECTED FOR S CRUTINY ASSESSMENT U/S 143(2) OF THE I.T ACT. 5. THE ASSESSING OFFICER WHILE FRAMING THE ASSESSME NT MADE THE FOLLOWING ADDITIONS/DISALLOWANCES TO THE INCOME OF THE ASSESSEE. SR. NO. PARTICULARS AMOUNT ( IN RS.) 1 ADDITION TOWARDS INTEREST IN RESPECT OF BANK ACCOUNT WITH CAPITAL LOCAL AREA BANK 15,159 2 ADDITION TOWARDS UNEXPLAINED CASH CREDITS 3,10,000 3 DISALLOWANCE OF COMMISSION EXPENSES 3,00,000 ON THE BASIS OF THE AFORESAID ADDITIONS/DISALLOWANC ES THE ASSESSING OFFICER ASSESSED THE INCOME AT RS. 85,56,450/-. 6. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN AP PEAL BEFORE THE LD. CIT(A), WHO VIDE HIS ORDER DATED 04.08.2014 THOUGH DELETED THE ADDITION OF RS. 3 LACS ON ACCOUNT OF COMMISSION EXPENSES, BUT C ONFIRMED THE REMAINING TWO ADDITIONS OF RS. 15,159/- AND RS. 3,10,000/-, R ESPECTIVELY. P A G E | 4 ITA NO.757/ASR./2017 MRS. MALTI GUPTA, JALANDHAR 7. THE ASSESSING OFFICER AFTER RECEIVING THE ORDER OF THE CIT(A) CALLED UPON THE ASSESSEE TO SHOW CAUSE AS TO WHY PENALTY U /S 271 (1)(C) OF THE I.T ACT MAY NOT BE IMPOSED ON HER. IN REPLY, THE ASSES SEE TRIED TO IMPRESS UPON THE ASSESSING OFFICER THAT NO PENALTY U/S 271 (1) ( C) OF THE ACT WAS CALLED OF IN HER HANDS. HOWEVER, THE ASSESSING OFFICER, NOT B EING PERSUADED TO ACCEPT THE EXPLANATION TENDERED BY THE ASSESSEE IMPOSED A PENALTY OF RS. 1,10,521/- FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. 8. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN AP PEAL BEFORE THE LD. CIT(A). THE CIT(A) AFTER DELIBERATING AT LENGTH ON THE CONTENTIONS ADVANCED BY THE ASSESSEE THOUGH DELETED THE PENALTY IMPOSED BY THE ASSESSING OFFICER IN RESPECT OF ADDITION OF RS. 15,159/-, BUT CONFIRM ED THE SAME IN RESPECT OF THE ADDITION OF RS. 3,10,000/- MADE TOWARDS UNEXPLA INED CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. 9. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF T HE CIT(A) TO THE EXTENT HE HAD UPHELD THE PENALTY IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE I.T ACT, HAS CARRIED THE MATTER IN APPEAL BEFOR E US. THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE AT THE VERY OUTSET OF HEARING OF THE APPEAL ASSAILED THE VALIDITY OF JURISDICTION ASSUMED BY THE ASSESSING OFFICER FOR IMPOSING PENALTY U/S 271(1)(C) OF THE I .T ACT. THE LD. A.R SUBMITTED THAT AS THE ASSESSING OFFICER HAD FAILED TO STRIKE OFF THE IRRELEVANT DEFAULT IN THE SHOW CAUSE NOTICE (HEREIN REFERRED TO AS SCN), DATED 31.12.2010 ISSUED U/S 274 R.W.S 271, THEREFORE, THE PENALTY WHICH WAS THEREAFTER IMPOSED BY HIM U/S 271(1)(C) OF THE I.T. ACT CANNOT BE SUSTAINED AND IS LIABLE TO BE VACATED. IN ORDER TO FORTIFY HI S AFORESAID CONTENTION, THE P A G E | 5 ITA NO.757/ASR./2017 MRS. MALTI GUPTA, JALANDHAR LD. A.R DREW OUR ATTENTION TO THE SCN, DATED 31.1 .2010 (PAGE 4 ) OF THE ASSESSES PAPER BOOK (HEREIN REFERRED TO AS APB) . IT WAS THE CONTENTION OF THE LD. A.R THAT AS THE ASSESSING OFFICER HAD FAILE D TO PUT THE ASSESSEE TO NOTICE AS REGARDS THE NATURE OF DEFAULT FOR WHICH P ENALTY U/S 271(1)(C) WAS SOUGHT TO BE IMPOSED ON HER, THEREFORE, THE PENALTY IMPOSED WITHOUT AFFORDING OF A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE COULD NOT BE SUSTAINED AND WAS LIABLE TO BE VACATED. 10. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT 'D.R') RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES. IT WAS SU BMITTED BY THE LD. D.R THAT AS THE ASSESSEE WAS AFFORDED SUFFICIENT OPPORT UNITY IN THE COURSE OF PENALTY PROCEEDINGS, AND THE LATTER HAD FURNISHED H ER REPLY, THUS, IT WAS INCORRECT ON HER PART TO CLAIM THAT NO OPPORTUNITY OF BEING HEARD WAS AFFORDED TO HER IN THE COURSE OF THE PENALTY PROCEE DINGS. 11. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES FO R BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, ON A PERUSAL OF THE SCN, DATE D 31.12.2010, IT STANDS REVEALED THAT THE ASSESSING OFFICER HAD FAILED TO S TRIKE OFF THE IRRELEVANT DEFAULT WHILE CALLING UPON THE ASSESSEE TO EXPLAIN AS TO WHY THE PENALTY U/S 271 (1) (C) OF THE ACT MAY NOT BE IMPOSED ON HER. I NSOFAR, THE VALIDITY OF THE JURISDICTION ASSUMED BY THE A.O IS CONCERNED, THE S AME HAS BEEN ASSAILED BEFORE US ON THE GROUND THAT AS THE IRRELEVANT DEFA ULT IN THE SHOW CAUSE NOTICE, DATED 31.12.2010 WAS NOT STRUCK OFF BY THE A.O, THEREFORE, THE ASSESSEE WAS NOT PUT TO NOTICE AS REGARDS THE DEFAU LT FOR WHICH SHE WAS P A G E | 6 ITA NO.757/ASR./2017 MRS. MALTI GUPTA, JALANDHAR CALLED UPON TO EXPLAIN AS TO WHY PENALTY MAY NOT BE IMPOSED ON HER UNDER SEC. 271(1)(C). 12. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE FACTS OF THE CASE AND ARE PERSUADED TO SUBSCRIBE TO THE CLAIM OF THE LD. A.R THAT THE A.O HAD IN THE AFORESAID SCN, DATED 31.12.2010 FAILED TO POI NT OUT THE DEFAULT FOR WHICH PENALTY WAS SOUGHT TO BE IMPOSED BY HIM ON TH E ASSESSEE. IN OUR CONSIDERED VIEW, AS BOTH OF THE TWO DEFAULTS ENVISA GED IN SEC. 271(1)(C) I.E CONCEALMENT OF INCOME AND FURNISHING OF INACCURA TE PARTICULARS OF INCOME ARE SEPARATE AND DISTINCT DEFAULTS WHICH OPERATE IN THEIR INDEPENDENT AND EXCLUSIVE FIELDS, THEREFORE, IT WAS OBLIGATORY ON T HE PART OF THE A.O TO HAVE CLEARLY PUT THE ASSESSEE TO NOTICE AS REGARDS THE D EFAULT FOR WHICH SHE WAS CALLED UPON TO EXPLAIN AS TO WHY PENALTY UNDER SEC. 271(1)(C) MAY NOT BE IMPOSED ON HER. AS OBSERVED BY US HEREINABOVE, A PE RUSAL OF THE SHOW CAUSE NOTICE ISSUED IN THE PRESENT CASE BY THE A.O UNDER SEC. 274 R.W. SEC. 271(1)(C), DATED 31.12.2010 CLEARLY REVEALS THAT TH ERE HAS BEEN NO APPLICATION OF MIND ON THE PART OF THE A.O WHILE IS SUING THE SAME. WE ARE OF A STRONG CONVICTION THAT THE VERY PURPOSE OF AFFORD ING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER T HE MANDATE OF SEC. 274(1) WOULD NOT ONLY BE FRUSTRATED, BUT WOULD BE RENDERED REDUNDANT, IF THE ASSESSEE IS NOT CONVEYED IN CLEAR TERMS THE SPECIFI C DEFAULT FOR WHICH PENALTY UNDER THE SAID STATUTORY PROVISION WAS SOUGHT TO BE IMPOSED. IN OUR CONSIDERED VIEW, THE INDISPENSABLE REQUIREMENT ON T HE PART OF THE A.O TO PUT THE ASSESSEE TO NOTICE AS REGARDS THE SPECIFIC CHAR GE CONTEMPLATED UNDER THE AFORESAID STATUTORY PROVISION VIZ. CONCEALMENT OF INCOME OR FURNISHING OF P A G E | 7 ITA NO.757/ASR./2017 MRS. MALTI GUPTA, JALANDHAR INACCURATE PARTICULARS OF INCOME IS NOT MERELY AN IDLE FORMALITY, BUT IS A STATUTORY OBLIGATION CAST UPON HIM, WHICH WE FIND H AD NOT BEEN DISCHARGED IN THE PRESENT CASE AS PER THE MANDATE OF LAW. 13. WE WOULD NOW TEST THE VALIDITY OF THE AFORESAID SHOW CAUSE NOTICE AND THE JURISDICTION EMERGING THEREFROM IN THE BACK DROP OF THE JUDICIAL PRONOUNCEMENTS ON THE ISSUE UNDER CONSIDERATION. AD MITTEDLY, THE A.O IS VESTED WITH THE POWERS TO LEVY PENALTY UNDER SEC. 2 71(1)(C) OF THE ACT, IF IN THE COURSE OF THE PROCEEDINGS HE IS SATISFIED THAT THE ASSESSEE HAD EITHER CONCEALED HIS INCOME OR FURNISHED INACCURATE PAR TICULARS OF HIS INCOME. IN OUR CONSIDERED VIEW, AS PENALTY PROCEEDINGS ARE IN THE NATURE OF QUASI CRIMINAL PROCEEDINGS, THEREFORE, THE ASSESSEE AS A MATTER OF A STATUTORY RIGHT IS SUPPOSED TO KNOW THE EXACT CHARGE FOR WHICH HE I S BEING CALLED UPON TO EXPLAIN THAT AS TO WHY THE SAME MAY NOT BE IMPOSED. THE NON SPECIFYING OF THE CHARGE IN THE SHOW CAUSE NOTICE NOT ONLY REFL ECTS THE NON APPLICATION OF MIND BY THE A.O, BUT THE SAME SERIOUSLY DEFEATS THE VERY PURPOSE OF GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AS ENVISAGED UNDER SEC. 274(1) OF THE I.T ACT. WE FIND THAT THE FINE D ISTINCTION BETWEEN THE SAID TWO DEFAULTS CONTEMPLATED IN SEC. 271(1)(C) VIZ. C ONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME HA D BEEN APPRECIATED AT LENGTH BY THE HONBLE SUPREME COURT IN ITS JUDGMENTS PASSED IN THE CASE OF DILIP & SHROFF VS. JT. CIT (2007) 210 CTR (SC) 228 AND T. ASHOK PAI VS. CIT (2007) 292 ITR 11 (SC) . THE HONBLE APEX COURT IN ITS AFORESAID JUDGMENTS HAD OBSERVED THAT THE TWO EXPRESSIONS, VI Z. CONCEALMENT OF PARTICULARS OF INCOME AND FURNISHING OF INACCURAT E PARTICULARS OF INCOME P A G E | 8 ITA NO.757/ASR./2017 MRS. MALTI GUPTA, JALANDHAR HAVE DIFFERENT CONNOTATION. THE HONBLE APEX COURT BEING OF THE VIEW THAT THE NON-STRIKING OFF THE IRRELEVANT LIMB IN THE NOT ICE CLEARLY REVEALS A NON- APPLICATION OF MIND BY THE A.O, HAD OBSERVED AS UND ER:- 83. IT IS OF SOME SIGNIFICANCE THAT IN THE STANDAR D PROFORMA USED BY THE ASSESSING OFFICER IN ISSUING A NOTICE D ESPITE THE FACT THAT THE SAME POSTULATES THAT INAPPROPRIATE WO RDS AND PARAGRAPHS WERE TO BE DELETED, BUT THE SAME HAD NOT BEEN DONE. THUS, THE ASSESSING OFFICER HIMSELF WAS NOT S URE AS TO WHETHER HE HAD PROCEEDED ON THE BASIS THAT THE ASSE SSEE HAD CONCEALED HIS INCOME OR HE HAS FURNISHED INACCURATE PARTICULARS. EVEN BEFORE US, THE LEARNED ADDITIONAL SOLICITOR GENERAL WHILE PLACING RELIANCE ON THE ORDER OF ASSE SSMENT LAID EMPHASIS THAT HE HAD DEALT WITH BOTH THE SITUATIONS . 84. THE IMPUGNED ORDER, THEREFORE, SUFFERS FROM NON - APPLICATION OF MIND. IT WAS ALSO BOUND TO COMPLY WI TH THE PRINCIPLES OF NATURAL JUSTICE [SEE MALABAR INDUSTRI AL CO. LTD. VS. CIT (2000) 2 SCC 718]. WE ARE OF THE CONSIDERED VIEW, THAT NOW WHEN AS PER THE SETTLED POSITION OF LAW THE TWO DEFAULTS VIZ. CONCEALMENT OF INCOME A ND FURNISHING OF INACCURATE PARTICULARS OF INCOME ARE SEPARATE AND DISTINCT DEFAULTS, THEREFORE, IN CASE THE A.O SOUGHT TO HAVE PROCEEDED AGAINST THE ASSESSEE FOR EITHER OF THE SAID DEFAULTS, THEN IT WAS INCUMBENT ON HIS PART TO HAVE CLEARLY SPECIFIED HIS SAID INTENTION IN THE SHOW CAUSE NO TICE, WHICH HOWEVER WE FIND HE HAD FAILED TO DO IN THE CASE BEFORE US. THE AFORESAID FAILURE ON THE PART OF THE ASSESSEE CANNOT BE CHARACTERISED AS MER ELY A TECHNICAL DEFAULT, AS THE SAME HAS CLEARLY DIVESTED THE ASSESSEE OF HE R STATUTORY RIGHT OF AN OPPORTUNITY OF BEING HEARD AND DEFEND HER CASE. 14. WE FIND THAT THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CIT VS. SSAS EMERALD MEADOWS (73 TAXMANN.COM 241)(KAR) FOLLOWING ITS EARLIER ORDER IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565 (KAR) HAS HELD THAT WHERE THE NOTICE ISSUED BY P A G E | 9 ITA NO.757/ASR./2017 MRS. MALTI GUPTA, JALANDHAR THE A.O UNDER SEC. 274 R.W SEC. 271(1)(C) DOES NOT SPECIFY THE LIMB OF SEC. 271(1)(C) FOR WHICH THE PENALTY PROCEEDINGS HAD BEE N INITIATED, I.E. WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURN ISHING OF INACCURATE PARTICULARS, THE SAME HAS TO BE HELD AS BAD IN LAW . THE SPECIAL LEAVE PETITION (FOR SHORT SLP) FILED BY THE REVENUE AGAINST THE AFORESAID ORDER OF THE HONBLE HIGH COURT OF KARNATAKA HAD BEEN DISMISSED BY THE HONBLE SUPREME COURT IN CIT VS. SSAS EMERALD MEADOWS (2016) 73 TAXMANN.COM 248 (SC). APART THEREFROM, WE FIND THAT A SIMILAR VIEW HAD BEEN TAKEN BY THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. SAMSON PERINCHERY (ITA NO. 1154 OF 2014; DT. 05.01.2 017)(BOM). 15. WE FIND THAT AS AVERRED BY THE LD. A.R., THE INDISP ENSABLE OBLIGATION ON THE PART OF THE A.O TO CLEARLY PUT THE ASSESSEE TO NOTICE OF THE CHARGE UNDER THE AFORESAID STATUTORY PROVISION VIZ. SEC. 2 71(1)(C) HAD BEEN DELIBERATED UPON BY A COORDINATE BENCH OF THE TRIBU NAL, I.E. ITAT C BENCH, MUMBAI IN THE CASE OF M/S ORBIT ENTERPRISES VS. ITO -15(2)(2), MUMBAI (ITA NO. 1596 & 1597/MUM/2014, DATED 01.09.2017). THE TR IBUNAL IN THE AFOREMENTIONED CASE HAD IN THE BACKDROP OF VARIOUS JUDICIAL PRONOUNCEMENTS CONCLUDED THAT THE FAILURE TO SPECIF Y THE CHARGE IN THE SHOW CAUSE NOTICE CLEARLY REFLECTS THE NON APPLIC ATION OF MIND BY THE A.O, AND WOULD RESULTANTLY RENDER THE ORDER PASSED UNDER SEC. 271(1)(C) IN THE BACKDROP OF THE SAID SERIOUS INFIRMITY AS INVALID A ND VOID AB INITIO. 16. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ISSUE BEFORE US AND AFTER DELIBERATING ON THE FACTS, ARE OF THE CONSIDE RED VIEW, THAT THE FAILURE ON THE PART OF THE A.O TO CLEARLY PUT THE ASSESSEE TO NOTICE AS REGARDS THE P A G E | 10 ITA NO.757/ASR./2017 MRS. MALTI GUPTA, JALANDHAR DEFAULT FOR WHICH PENALTY UNDER SEC. 271(1)(C) WAS SOUGHT TO BE IMPOSED ON HER BY FAILING TO STRIKE OFF THE IRRELEVANT DEFAULT IN THE SCN, DATED 31.12.2010, HAD LEFT THE ASSESSEE GUESSING OF THE D EFAULT FOR WHICH SHE WAS BEING PROCEEDED AGAINST FOR. WE THUS IN THE BACKDRO P OF OUR AFORESAID OBSERVATIONS, ARE OF A STRONG CONVICTION THAT AS TH E A.O HAD CLEARLY FAILED TO DISCHARGE HIS STATUTORY OBLIGATION OF FAIRLY PUTTIN G THE ASSESSEE TO NOTICE AS REGARDS THE DEFAULT FOR WHICH SHE WAS BEING PROCEED ED AGAINST, THEREFORE, THE PENALTY UNDER SEC. 271(1)(C) OF RS.1,10,521/- I MPOSED BY HIM IN CLEAR VIOLATION OF THE MANDATE OF SEC. 274(1) OF THE ACT, CANNOT BE SUSTAINED. WE THUS FOR THE AFORESAID REASONS NOT BEING ABLE TO PE RSUADE OURSELVES TO SUBSCRIBE TO THE IMPOSITION OF PENALTY BY THE A.O, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) WHO HAD UPHELD THE SAME. THE PE NALTY OF RS.1,10,521/- IMPOSED BY THE A.O UNDER SEC.271(1)(C) IS QUASHED I N TERMS OF OUR AFORESAID OBSERVATIONS. 17. AS THE PENALTY IMPOSED ON THE ASSESSEE UNDER SE C. 271(1)(C) OF THE ACT HAD BEEN QUASHED BY US FOR WANT OF JURISDICTION ON THE PART OF THE A.O, THEREFORE, WE REFRAIN FROM ADVERTING TO AND ADJUDIC ATING THE MERITS OF THE CASE. 18. THE APPEAL OF THE ASSESSEE IS ALLOWED IN TERMS OF OUR AFORESAID OBSERVATIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 17.01.2019. SD/- SD/- ( N.K. SAINI) (RAVISH SOOD) VICE PRESIDENT JUDIC IAL MEMBER PLACE: JALANDHAR; DATE .01.2019 RKK P A G E | 11 ITA NO.757/ASR./2017 MRS. MALTI GUPTA, JALANDHAR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. , DR, ITAT, CAMP BENCH AT JALANDHAR. 6. / GUARD FILE. //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) / ITAT, CAMP BENCH, JALANDHAR. SR.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 15.1.19 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 16.1.19 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS/PS 17.1.19 SR .PS/PS 6 KEPT FOR PRONOUNCEMENT ON 17.1.19 SR.PS/PS 7 FILE SENT TO THE BENCH CLERK 17.1.19 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE AR 10 DATE OF DISPATCH OF ORDER