Shyam Kaur (Individual), New Delhi V. ACIT, Circle-44(1), New Delhi

ITA 8029/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2172 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 18-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: B L GUPTA ITP
• Keywords: Principle of natural justice; Initiation of penalty proceedings; Set aside
• Section: 271(1)(c); 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: SMC: NEW DELHI) BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NOS.:- 8026 TO 8030/DEL/2018 (ASSESSMENT YEARS: 2009-10 TO 2013-14) SHYAM KAUR (INDIVIDUAL) 823, PALAM VIHAR, BIJWASSAN, NEW DELHI, PIN: 110061 VS. ACIT CIRCLE- 44(1) NEW DELHI PAN NO: BSDPK7523A APPELLANT RESPONDENT ASSESSEE BY : SH. B.L. GUPTA, ITP. REVENUE BY : SH. S.L. ANURAGI, SR. DR DATE OF HEARING : 12.06.2019 DATE OF PRONOUNCEMENT : 25.06.2019 ORDER PER DIVA SINGH : BY THESE FIVE APPEALS FILED BY THE ASSESSEE, THE C ORRECTNESS OF THE SEPARATE ORDERS DATED 09.10.2018 OF CIT(A)-15, NEW DELHI, PERTAINING TO 2009- 10 TO 2013-14 ASSESSMENT YEARS IS ASSAILED. THE CI T(A) IN THE ORDERS HAS CONFIRMED THE PENALTY IMPOSED U/S 271(1)(C) OF INCO ME TAX ACT, 1961 BY THE ASSESSING OFFICER. 2. IT WAS A COMMON STAND OF THE PARTIES BEFORE THE BENCH THAT THE ARGUMENTS ADVANCED IN ITA NO. 8026/DEL/2018 WOULD F ULLY APPLY TO THE REMAINING APPEALS ALSO AS IDENTICAL GROUNDS HAVE BE EN RAISED IN ALL THE APPEALS ON IDENTICAL SET OF FACTS, CIRCUMSTANCES AND POSITI ON OF LAW. ACCORDINGLY, GROUNDS RAISED IN ITA 8026/DEL/2018 ARE REPRODUCED : 1. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CA SE AND IN LAW THE CIT(A) -15 WAS INCORRECT AND UNJUSTIFIED IN DISMISSING THE APP EAL OF THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE C1T(A) -15 WAS INCORRECT AND UNJUSTIFIED IN SUSTAINING THE PEN ALTY UNJUSTIFIABLY LEVIED BY THE AO U/S 271(1 )(C) BY HOLDING THAT HON'BLE SUPREME COURT JUDGMENT IN THE CASE OF ITA NOS.:- 8026 TO 8030/DEL/2018 SHYAM KAUR (INDIVIDUAL). PAGE 2 OF 8 SSA'S EMERALD MEADOWS REPORTED IN 386 ITR 13 AND MA NJUNATH ETC WOULD NOT HELP THE ASSESSEE. 3. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) -LA .WAS INCORRECT AND UNJUSTIFIED IN HOLDING THAT PENALTY L EVIED U/S 271(L)(C) BY THE AO WAS CORRECT AND JUSTIFIED EVEN IN THE PRESENCE OF S SA'S EMERALD MEADOWS AND MANJUNATH JUDGMENTS AND ALSO OTHERS AS GIVEN BEFORE THE CIT(A). 4. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) 15 WAS INCORRECT AND UNJUSTIFIED IN HOLDING THAT PENALTY N OTICE ISSUED BY THE AO U/S 271(L)(C) WAS LEGAL AND THEREFORE THE CONTENTION OF THE ASSESSEE THAT PENALTY NOTICE IN FACT WAS ILLEGAL AND BAD IN LAW ITSELF, I N VIEW OF THE AFORESAID TWO JUDGMENTS AND THEREFORE THE PENALTY ORDER WAS NOT S USTAINABLE. 5. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE RELIANCE ON SEVERAL JUDGMENTS OF HON'BLE SUPREME COURT, HIGH CO URTS AND TRIBUNALS IN DISMISSING THE APPEAL OF THE ASSESSEE ARE MISPLACED SINCE THEY ARE EITHER NOT APPLICABLE IN THE PRESENT CASE OR RENDERED PRIOR TO THE AFORESAID TWO JUDGMENTS. 6. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) -15 WAS INCORRECT AND UNJUSTIFIED IN HOLDING THAT THERE IS CONCEALMENT OF INCOME EVEN WHEN THE INCOME ASSESSED IS THE SAME AS RETURNED. 7. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) -15 WAS INCORRECT AND UNJUSTIFIED IN HOLDING THAT PENALTY F OR CONCEALMENT OF INCOME HAS BEEN RIGHTLY LEVIED EVEN WHEN THE PENALTY NOTICE HA S BEEN ISSUED BOTH FOR CONCEALMENT OF INCOME AND ALSO FOR FILING INCORRECT PARTICULARS OF INCOME WHICH IS BAD IN LAW SINCE INAPPROPRIATE WORDS HAVE NOT BE EN STRUCK OF. 8. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) -15 WAS INCORRECT AND UNJUSTIFIED IN HOLDING THE PENALTY PR OCEEDINGS HAVE BEEN RIGHTLY INITIATED EVEN WHEN THE PENALTY PROCEEDINGS HAVE NO T BEEN LEGALLY INITIATED EVEN AFTER THE AMENDMENT IN THE ACT. 9. WITHOUT PREJUDICE TO ABOVE GROUNDS OF APPEAL, ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) -15 WAS INCORRECT AND UNJUSTIFIED IN CONFIRMING PENALTY U/S 271(1)(C) WITHOUT PROVING EITHER THE CONCEALMENT OR FILING OF INACCURATE PARTICULARS OF INCOME AND HENC E THE ORDERS OF AUTHORITIES BELOW NEEDS QUASHING. 3. THE LD. AR INVITING ATTENTION TO THE ARGUMENTS A DVANCED BEFORE THE CIT(A) SUBMITTED THAT THE PENALTY ORDERS DESERVE TO BE QUASHED. IN VIEW OF THE SETTLED LEGAL POSITION ON THE ISSUE WHICH HAS BEEN A SUBJECT MATTER OF CONSIDERATION IN VARIOUS DECISIONS OF THE ITAT AND THE COURTS. IT WAS SUBMITTED THAT PARA NO. 5.6.2 OF THE IMPUGNED ORDER ACCEPTS T HE FACT THAT IN THE QUANTUM ORDER PASSED BY THE AO AND IN THE PENALTY ORDER PAS SED THERE IS A DISCREPANCY ON THE STATUTORY NOTICE ISSUED TO THE ASSESSEE. AC CORDINGLY, IT WAS HIS SUBMISSION THAT THE ISSUE IS FULLY COVERED IN FAVOU R OF THE ASSESSEE. RELIANCE WAS PLACED UPON THE DECISIONS MENTIONED IN GROUND N OS. 2 & 3 NAMELY ITSELF I.E. SSA'S EMERALD MEADOWS REPORTED IN 386 ITR 13 A ND MANJUNATH COTTON & GINNING FACTORY OF THE KARNATAKA HIGH COURT AMONGST OTHERS. RELIANCE WAS ITA NOS.:- 8026 TO 8030/DEL/2018 SHYAM KAUR (INDIVIDUAL). PAGE 3 OF 8 ALSO PLACED ON THE DECISIONS OF HON'BLE GUJRAT HIGH COURT AND DELHI HIGH COURT IN THE CASES OF MANU ENGINEERING REPORTED IN 122 IT R 306 AND IN THE CASE OF VIRGO MARKETING REPORTED IN 171 TAXMN 156. COPY OF ORDER DATED 25.04.2019 IN ITA NO. 4585/DEL/2015 IN THE CA SE OF DCIT VS GELLETTE DIVERSIFIED OPERATIONS PVT. LTD. WAS ALSO FILED. S PECIFIC ATTENTION WAS INVITED TO PARAS 8 TO 11 OF THE SAME, WHICH IS EXTRACTED HEREU NDER : 8. WE HAVE HEARD THE RIVAL SUBMISSIONS QUA THE LEGAL I SSUE THAT IMPUGNED PENALTY PROCEEDINGS ARE NOT VALID ON THE GROUND THA T, ASSESSING OFFICER WHILE ISSUING THE SHOW CAUSE NOTICE, HAD NOT SPECIFIED TH E CHARGE AS TO UNDER WHICH LIMB, HE IS PROPOSING TO LEVY THE PENALTY U/S 27I(I)(C). FROM THE PERUSAL OF THE ASSESSMENT ORDER, IT IS SEEN THAT ID. ASSESSING OFFICER HAS TH OUGH SPECIFIED THE CHARGE THAT HE IS INITIATING THE PENALTY PROCEEDINGS U/S. 27I(I)(C ) ON ACCOUNT OF FURNISHING OF INACCURATE PARTICULARS OF INCOME, HOWEVER, AT THE T IME OF ISSUANCE OF SHOW CAUSE NOTICE U/S.274, NO SUCH CHARGE HAS BEEN SPECIFIED. THE NOTICES HAVE BEEN SENT ON A PRINTED FORMAT WHEREIN HE HAS NOT STRIKE DOWN OR ME NTIONED AS TO UNDER WHICH LIMB HE IS PROPOSING TO LEVY THE PENALTY. THE SECTION 27 I(I)(C) STIPULATES TWO LIMBS OF CHARGES IN WHICH PENALTY CAN BE LEVIED, ONE, WHERE ANY PERSON HAS CONCEALED THE PARTICULARS OF HIS INCOME; OR SECOND, HE HAS FURNIS HED INACCURATE PARTICULARS OF SUCH INCOME. 9. THE HON'BLE KARNATAKA HIGH COURT IN THE CASE O F CIT VS. MANJUNATHA COTTON AND GINNING FACTORY (SUPRA) HAS HELD THAT A PERSON WHO IS ACCUSED OF CONDITIONS MENTIONED IN SECTION 271 SHOULD BE MADE KNOWN ABOUT THE GROUNDS ON WHICH THE DEPARTMENT IS IMPOSING PENALTY, AS SECTION 274 MAKE S IT CLEAR THAT THE ASSESSEE HAS RIGHT TO CONTEST SUCH PROCEEDINGS AND SHOULD HA VE FULL OPPORTUNITY TO MEET THE CASE OF THE DEPARTMENT AND SHOW THAT CONDITIONS STI PULATES IN SECTION 27I(I)(C) DID NOT EXIST AND IS NOT LIABLE TO PAY THE PENALTY. THE IR LORDSHIPS HAVE FURTHER HELD THAT THE PRACTICE OF THE DEPARTMENT SENDING A PRINTED FO RM WHERE ALL THE GROUNDS MENTIONED IN SECTION 271 WOULD NOT SATISFY THE REQU IREMENT OF THE LAW WHEN THE CONSEQUENCES OF THE ASSESSEE NOT REBUTTING THE INIT IAL PRESUMPTION IS SERIOUS IN NATURE AND HAD TO PAY PENALTY FROM 100% TO 300% OF THE TAX LIABILITY. THEREFORE, THE SAID PROVISION HAS TO BE STRICTLY CONSTRUED AND NOTICE ISSUED U/S. 274 SHOULD SATISFY THE GROUNDS WHICH THE PERSON HAS TO MEET SPECIFICALLY. OTHERWISE, PRINCIPLE OF NATURE JUSTICE IS OFFENDED IF A SHOW CAUSE NOTICE I S VAGUE. ON THE BASIS OF SUCH PROCEEDINGS, NO PENALTY CAN BE IMPOSED ON THE ASSES SEE. THE RELEVANT OBSERVATION AND LAW SPECIFIED BY THEIR LORDSHIPS IN THIS REGARD READS AS UNDER: '59. AS THE PROVISION STANDS, THE PENALTY PROCEEDIN GS CAN BE INITIATED ON VARIOUS GROUND SET OUT THEREIN. IF THE ORDER PASSED BY THE AUTHORITY CATEGORICALLY RECORDS A FINDING REGAR DING THE EXISTENCE OF ANY SAID GROUNDS MENTIONED THEREIN AND THEN PENALTY PROCEEDINGS IS INITIATED, IN THE NOTICE TO BE ISSUE D UNDER SECTION 274, THEY COULD CONVENIENTLY REFER TO THE SAID ORDE R WHICH CONTAINS THE SATISFACTION OF THE AUTHORITY WHICH HAS PASSED THE ORDER. HOWEVER, IF THE EXISTENCE OF THE CONDITIONS COULD N OT BE DISCERNED FROM THE SAID ORDER AND IF IT IS A CASE OF RELYING ON DEEMING ITA NOS.:- 8026 TO 8030/DEL/2018 SHYAM KAUR (INDIVIDUAL). PAGE 4 OF 8 PROVISION CONTAINED IN EXPLANATION-I OR IN EXPLANAT ION-L(B), THEN THOUGH PENALTY PROCEEDINGS ARE IN THE NATURE OF CIV IL LIABILITY, IN FACT, IT IS PENAL IN NATURE. IN EITHER EVENT, THE P ERSON WHO IS ACCUSED OF THE CONDITIONS MENTIONED IN SECTION 271 SHOULD BE MADE KNOWN ABOUT THE GROUNDS ON WHICH THEY INTEND I MPOSING PENALTY ON HIM AS THE SECTION 274 MAKES IT CLEAR TH AT ASSESSEE HAS A RIGHT TO CONTEST SUCH PROCEEDINGS AND SHOULD HAVE FULL OPPORTUNITY TO MEET THE CASE OF THE DEPARTMENT AND SHOW THAT THE CONDITIONS STIPULATED IN SECTION 27I(L)(C) DO NOT E XIST AS SUCH HE IS NOT LIABLE TO PAY PENALTY. THE PRACTICE OF THE DEPA RTMENT SENDING A PRINTED FARM WHERE ALL THE GROUND MENTIONED IN SE CTION 271 ARE MENTIONED WOULD NOT SATISFY REQUIREMENT OF LAW WHEN THE CONSEQUENCES OF THE ASSESSEE NOT REBUTTING THE INIT IAL PRESUMPTION IS SERIOUS IN NATURE AND HE HAD TO PAY PENALTY FROM 100% TO 300% OF THE TAX LIABILITY. AS THE SAID PROVISIONS HAVE T O BE HELD TO BE STRICTLY CONSTRUED, NOTICE ISSUED UNDER SECTION 274 SHOULD SATISFY THE GROUNDS WHICH HE HAS TO MEET SPECIFICALLY. OTHE RWISE, PRINCIPLES OF NATURAL JUSTICE IS OFFENDED IF THE SH OW CAUSE NOTICE IS VAGUE. ON THE BASIS OF SUCH PROCEEDINGS, NO PENALTY COULD BE IMPOSED ON THE ASSESSEE. 60. CLAUSE(C) DEALS WITH TWO SPECIFIC OFFENCES, THA T IS TO SAY, CONCEALING PARTICULARS OF INCOME OR FURNISHING INAC CURATE PARTICULARS OF INCOME. NO DOUBT, THE FACTS OF SOME CASES MAY ATTRACT BOTH THE OFFENCES AND IN SOME CASES THERE M AY BE OVERLAPPING OF THE TWO OFFENCES BUT IN SUCH CASES T HE INITIATION OF THE PENALTY PROCEEDINGS ALSO MUST BE FOR BOTH THE O FFENCES. BUT DRAWING UP PENALTY PROCEEDINGS FOR ONE OFFENCE AND FINDING THE ASSESSEE GUILTY OF ANOTHER OFFENCE OR FINDING HIM G UILTY FOR EITHER THE ONE OR THE OTHER CANNOT BE SUSTAINED IN LAW. IT IS NEEDLESS TO POINT OUT SATISFACTION OF THE EXISTENCE OF THE GROU NDS MENTIONED IN SECTION 27I(L)(C) WHEN IT IS A SINE QUA NON FOR INI TIATION OR PROCEEDINGS, THE PENALTY PROCEEDINGS SHOULD BE CONF INED ONLY TO THOSE GROUNDS AND THE SAID GROUNDS HAVE TO BE SPECI FICALLY STATED SO THAT THE ASSESSEE WOULD HAVE THE OPPORTUNITY TO MEET THOSE GROUNDS. AFTER, HE PLACES HIS VERSION AND TRIES TO SUBSTANTIATE HIS CLAIM, IF AT ALL, PENALTY IS TO BE IMPOSED, IT SHOU LD BE IMPOSED ONLY ON THE GROUNDS ON WHICH HE IS CALLED UPON TO ANSWER . IT IS NOT OPEN TO THE AUTHORITY, AT THE TIME OF IMPOSING PENA LTY TO IMPOSE PENALTY ON THE GROUNDS OTHER THAN WHAT ASSESSEE WAS CALLED UPON TO MEET. OTHERWISE THOUGH THE INITIATION OF PENALTY PROCEEDINGS MAY BE VALID AND LEGAL, THE FINAL ORDER IMPOSING PE NALTY WOULD OFFEND PRINCIPLES OF NATURAL JUSTICE AND CANNOT BE SUSTAINED. THUS ONCE THE PROCEEDINGS ARE INITIATED ON ONE GROUND, T HE PENALTY SHOULD ALSO BE IMPOSED ON THE SAME GROUND. WHERE TH E BASIS OF THE INITIATION OF PENALTY PROCEEDINGS IS NOT IDENTI CAL WITH THE GROUND ON WHICH THE PENALTY WAS IMPOSED, THE IMPOSI TION OF PENALTY IS NOT VALID. THE VALIDITY OF THE ORDER OF PENALTY MUST BE DETERMINED WITH REFERENCE TO THE INFORMATION, FACTS AND MATERIALS IN THE HANDS OF THE AUTHORITY IMPOSING THE PENALTY AT THE TIME THE ORDER WAS PASSED AND FURTHER DISCOVERY OF FACTS SUB SEQUENT TO THE ITA NOS.:- 8026 TO 8030/DEL/2018 SHYAM KAUR (INDIVIDUAL). PAGE 5 OF 8 IMPOSITION OF PENALTY CANNOT VALIDATE THE ORDER OF PENALTY WHICH, WHEN PASSED, WAS NOT SUSTAINABLE. 61. THE ASSESSING OFFICER IS EMPOWERED UNDER THE AC T TO INITIATE PENALTY PROCEEDINGS ONCE HE IS SATISFIED IN THE COU RSE OF ANY PROCEEDINGS THAT THERE IS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF TOTAL INCOME UNDER CLAUSE (C). CONCEALMENT, FURNISHING INACCURATE PARTICULARS OF I NCOME ARE DIFFERENT. THUS THE ASSESSING OFFICER WHILE ISSUING NOTICE HAS TO COME TO THE CONCLUSION THAT WHETHER IS IT A CASE OF CONCEALMENT OF INCOME OR IS IT A CASE OF FURNISHING OF INACCURATE PARTICULARS. THE APEX COURTINLHE CASE OF ASHOK PAI REPORTED IN 292 I TR 11 AT PAGE 19 HAS HELD THAT CONCEALMENT OF INCOME AND FURNISHI NG INACCURATE PARTICULARS OF INCOME CARRY DIFFERENT CONNOTATIONS. THE GUJRAT HIGH COURT IN THE CASE OF MANU ENGINEERING REPORTED IN 122 ITR 306 AND THE DELHI HIGH COURT IN THE CASE OF VIR GO MARKETING REPORTED IN 171 TAXMN 156, HAS HELD THAT LEVY OF PENALTY HAS TO BE CLEAR AS TO THE LIMB FOR WHICH IT IS LEVIED AND THE POSITION BEING UNCLEAR PENALTY IS NOT SUSTAINABLE. THEREFORE, WHEN THE ASSESSING OFFICER' 10. THEIR LORDSHIPS WHILE COMING TO THE AFORESAID CONCLUSION HAVE ALSO REFERRED TO THE JUDGMENT OF HON'BLE GUJARAT HIGH CO URT IN THE CASE OF MANU ENGINEERING (SUPRA); AND HON'BLE DELHI HIGH COURT I N THE CASE OF VIRGO MARKETING (SUPRA). THE AFORESAID PRINCIPLE LAID DOWN BY THE H ON'BLE HIGH COURT HAS ALSO BEEN FOLLOWED BY THIS CO-ORDINATE BENCH IN VARIOUS CASES. AS POINTED OUT BY LEARNED COUNSEL, HON'BLE SUPREME COURT IN THE CASE OF VEERBHADRAPASANGAPPA & CO. (SUPRA) HAVE DISMISSED THE REVENUE'S SLP AGAINS T KARNATAKA HIGH COURT JUDGMENT LAYING DOWN THE LAW ON PENALTY, WHEREIN IT WAS HELD THAT NOTICE U/S.274 ITSELF SPECIFICALLY STATE THAT GROUND FOR INITIATIO N OF PENALTY PROCEEDINGS WHETHER FOR CONCEALMENT OF INCOME OR FILING OF INACCURATE P ARTICULARS OF INCOME. MERE SENDING OF PRINTED FORM WITH ALL THE GROUNDS MENTIO NED IS NOT SUFFICIENT COMPLIANCE OF LAW. THE AFORESAID PRINCIPLE AND RATIO LAID DOWN BY THE HON'BLE KARNATAKA HIGH COURT WOULD ALSO APPLY IN THE PRESENT CASE, BECAUSE HERE IN THIS CASE THE ID. ASSESSING OFFICER WHILE ISSUING A SHOW CAUSE NOTICE U/S. 274 R.W.S. 271 IN PRINTED FORMAT HAS NOT SPECIFIED THE GROUNDS AS TO UNDER WH ICH LIMB HE IS PROPOSING TO INITIATE AND LEVY A PENALTY U/S. 271(1)(C). THUS, R ESPECTFULLY FOLLOWING THE AFORESAID JUDGMENTS, WE HOLD THAT IMPUGNED PENALTY LEVIED BY THE ASSESSING OFFICER IS NOT VALID AND SAME IS NOT SUSTAINABLE. ON THIS GROUND T HE ENTIRE PENALTY IS DELETED. 11. IN THE RESULT, IN VIEW OF THE AFORESAID FINDING, TH E REVENUE'S APPEAL IS TREATED AS DISMISSED AND ASSESSEE'S IS APPEAL AS AL LOWED. 4. RELIANCE WAS PLACED UPON THE ORDER DATED 03.01.2 019 IN ITA NO. 8020/DEL/2018 IN THE CASE OF SMT. KRISHNA DEVI VS A CIT ( COPY FILED) WHICH WAS STATED TO BE A CONNECTED CASE OF THE FAMILY MEM BER ON IDENTICAL FACTS AND CIRCUMSTANCES. . ITA NOS.:- 8026 TO 8030/DEL/2018 SHYAM KAUR (INDIVIDUAL). PAGE 6 OF 8 5. THE LD. SR. DR RELIES UPON THE IMPUGNED ORDER. I T WAS ALSO HIS SUBMISSION THAT THERE ARE VARIOUS OTHER CONTRARY DE CISIONS WHEREIN THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJU NATH HAS NOT BEEN FOLLOWED. 6. THE LD. AR WHO WAS GIVEN TIME TO GO THROUGH THE DECISIONS SUBMITTED THAT MOST OF THEM ARE EXTRACTED FROM THE IMPUGNED O RDER. RELYING ON THE LATEST DECISION OF THE ITAT ON SAME SET OF FACTS AND CIRCU MSTANCES I.E. SMT. KRISHNA DEVI, IT WAS HIS SUBMISSION THAT IN THE SAID CASE A LSO SAME DECISIONS HAD BEEN RELIED UPON BY THE CIT(A) ON SAME FACTS AND CONSIDE RING THE SIMILAR ARGUMENTS ADVANCED BY THE SAME SR. DR, APPEALS OF THE ASSESSE E ON IDENTICAL FACTS AND CIRCUMSTANCES WAS ALLOWED. IT WAS ALSO HIS ALTERNA TE SUBMISSION THAT EVEN IF ONE WERE TO CONSIDER THAT THERE ARE CONTRARY DECISI ONS, THEN THE ISSUE ADMITTEDLY IS OPEN TO DEBATE WHERE CONSISTENT ORDER S OF KARNATAKA HIGH COURT ARE BEING PITTED AGAINST SOME TRIBUNAL DECISIONS. IN SUCH AN EVENTUALITY, HE ARGUED THAT THE SETTLED LEGAL POSITION IS THAT THE ISSUE BE DECIDED ON THE BASIS OF LATEST ORDER OF THE ITAT IN A CONNECTED CASE AS FACTS REMAIN IDENTICAL. ALTERNATELY ADVANCING A WITHOUT PREJUDICE ARGUMENT IN THE CIRCUMSTANCES, IT WAS HIS PRAYER THAT ONCE THE ISSUE EVEN AFTER THE D ECISION OF THE APEX COURT IN SSA EMEROLD MEADOWS IS CONSIDERED TO BE DEBATABLE B Y SOME CONTRARY DECISIONS OF THE ITAT, THEN IN SUCH AN EVENTUALITY WHERE TWO VIEWS ARE AVAILABLE IN TERMS OF THE PRINCIPLE LAID DOWN BY THE APEX COU RT IN THE CASE OF VEGETABLE PRODUCTS, IN SUCH A SITUATION ALSO, THE ISSUE HAS T O BE DECIDED BY FOLLOWING A VIEW FAVOURABLE TO THE ASSESSEE. 7. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL ON RECORD. IN THE FACTS OF THE PRESENT CASE, IT IS SEEN THAT I N THE SHOW CAUSE NOTICE DATED 26.08.2018 AS CONSIDERED BY THE CO-ORDINATE BENCH I N PARAS 3 AND 4 OF THE ORDER CITED, THE SPECIFIC LIMB OF SECTION 271(1)(C) INVOKED HAS NOT BEEN IDENTIFIED. ADMITTEDLY, THE FACTS, CIRCUMSTANCES AN D POSITION OF LAW REMAINS IDENTICAL. FOR READY REFERENCE, THE RELEVANT EXTRA CT OF ITA 8020/DEL/2018 IS EXTRACTED HEREUNDER : ITA NOS.:- 8026 TO 8030/DEL/2018 SHYAM KAUR (INDIVIDUAL). PAGE 7 OF 8 3. THE ASSESSEE FILED THE WRITTEN STATEMENT STAT ING THEREIN THAT NOTICE UNDER SECTION 271(L)(C) OF THE I.T. ACT AS ENCLOSED DATED 26.08.2 016 DID NOT SPECIFY THE EXACT CHARGE OF CONCEALMENT OR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME. IN THESE CIRCUMSTANCES, NOTICE IS VAGUE AND LIABLE TO BE SET ASIDE. THE ASS ESSEE RELIED UPON THE ORDER OF ITAT, DELHI C-BENCH IN THE CASE OF BHARAT IMMUNOLOGICAL A ND BIOLOGICAL CORPORATION LTD., VS. DCIT [2019] 72 ITR (TRIB.) (S.N.) 5 (DELHI). COPY O F THE ORDER IS FILED. 4. ON THE OTHER HAND, LD. D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT FAILURE OF THE A.O. TO STRIKE-OFF CO LUMN IN SHOW CAUSE NOTICE IS NO GROUND FOR DELETING THE PENALTY. THE LD. D.R. RELIED UPON THE ORDER OF ITAT, CHENNAI BENCH REPORTED IN TS-289-ITAT-2019-CHNY. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE A.O . ISSUED SHOW CAUSE NOTICE BEFORE LEVY OF THE PENALTY UNDER SECTION 271(L)(C) OF THE I.T. ACT, 1961, DATED 26.08.2016 IN WHICH THE A.O. HAS MENTIONED AS UNDER : 'HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR F URNISHED INACCURATE PARTICULARS OF SUCH INCOME IN TERMS OF EXPLANATION 1, 2, 3, 4 & 5.' 5.1. THESE FACTS, THEREFORE, CLEARLY SHOW THAT NOTI CE ISSUED BY THE A.O. FOR LEVY OF PENALTY UNDER SECTION 271(L)(C) OF THE ACT TO BE BA D IN LAW AS IT DID NOT SPECIFY IN WHICH LIMB OF SECTION 271(L)(C) OF THE ACT, THE PENALTY P ROCEEDINGS HAD BEEN INITIATED I.E., WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE ENTIRE PENALTY PROCEEDINGS ARE, THEREFO RE, VITIATED AND NO PENALTY IS LEVIABLE. ON THIS SCORE ITSELF, SIMILAR VIEW IS TAKEN BY HON LE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. M/S. SSAS EMERALD MEADOWS 73 TAXMANN.COM 241 AND THIS DECISION IS CONFIRMED BY THE HON'BLE SUPREME COURT REPORTED IN 73 TAXMANN .COM 248. FURTHER, THE ITAT, DELHI BENCHES ARE TAKING A CONSISTENT VIEW THAT IN SUCH C IRCUMSTANCES, LEVY OF PENALTY IS INVALID. SINCE THE SHOW CAUSE NOTICE IS INVALID DUE TO THE ABOVE REASON AND AS SUCH THE ENTIRE PENALTY PROCEEDINGS ARE VITIATED. THUS, NO P ENALTY IS LEVIABLE AGAINST THE ASSESSEE. THE DECISIONS RELIED UPON BY THE LD. D.R. WOULD NOT SUPPORT THE CASE OF THE REVENUE, IN VIEW OF THE ABOVE, I SET ASIDE THE ORDERS OF THE AU THORITIES BELOW AND CANCEL THE PENALTY. 6. IN THE RESULT, APPEAL OF ASSESSEE AL LOWED. 7.1 ACCORDINGLY, IN THE ABSENCE OF ANY CHANGE IN FA CTS, CIRCUMSTANCES OR POSITION OF LAW, RESPECTFULLY FOLLOWING THE ORDER O F THE CO-ORDINATE BENCH WHICH HAS NOT BEEN DISTINGUISHED, THE APPEALS OF THE ASSE SSEE ARE ALLOWED. 8. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED. SD/- SS (DIVA SINGH) JUDICIAL MEMBER DATED: 125 25.06.2019 BIDHAN/POONAM(CHD) COPY FORWARDED TO: 1. APPELLANT ITA NOS.:- 8026 TO 8030/DEL/2018 SHYAM KAUR (INDIVIDUAL). PAGE 8 OF 8 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI