Shambhu Kumar More, Kolkata V. ACIT, Cental Circle -XXIII, Kolkata , Kolkata

MA 51/KOL/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6453 (ITAT-KOLKATA)
• Duration Of Justice: 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 20-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Keywords: Opportunity of being heard; Principle of natural justice; Question of law
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BEN CH : KOLKATA [BEFORE HONBLE SHRI M. BALAGANESH, AM & SHRI S.S . VISWANETHRA RAVI, JM] M.A. NOS. 50-52/KOL/2018 (A/O I. T.A NOS.2242-2244/KOL/2014) ASSESSMENT YEARS : 2004- 05,2005-06&2006-07 SHAMBHU KUMAR MORE -VS.- ACIT, CC-XXIII, K OLKATA [PAN : ADLPM 3303 J] (APPELLANT) (RESPONDENT) I.T.A NOS.2242-2244/KO L/2014 ASSESSMENT YEARS : 2004-0 5,2005-06&2006-07 SHAMBHU KUMAR MORE -VS.- ACIT, CC-XXIII, K OLKATA [PAN : ADLPM 3303 J] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SUBHASH AGARWAL, ADV OCATE FOR THE RESPONDENT : SHRI SAURABH KUMAR, ADDL . CIT (DR) DATE OF HEARING : 13.04.2018. DATE OF PRONOUNCEMENT : 13.04.2018 ORDER PER M.BALAGANEH, AM BY VIRTUE OF THESE MISCELLANEOUS APPLICATIONS, THE ASSESSEE SEEKS TO RECALL THE EX PARTE ORDER PASSED BY THIS TRIBUNAL DISMISSING THE APPEALS OF THE ASSESSEE FOR NON- PROSECUTION. THE ASSESSEE FILED AN AFFIDAVIT BEFORE US STATING THAT NOTICE OF HEARING WAS NOT RECEIVED BY THE ASSESSEE AND ACCORDINGLY, PRAY ED FOR RECALLING OF THE ORDER PASSED BY THE TRIBUNAL. HE HAS STATED THAT THE APPEALS WER E PREFERRED BY THE ASSESSEE AGAINST CONFIRMATION BY LD. CIT(A) OF ORDERS PASSED U/S 271 (1)(C ) OF THE ACT BY THE LD. AO, BY ISSUING DEFECTIVE SHOW CAUSE NOTICE U/S 274 READ WI TH SECTION 271(1)(C ) OF THE ACT, INASMUCH AS THE LD. AO HAD NOT MENTIONED SPECIFIC C HARGE OF OFFENCE COMMITTED BY THE 2 M.A.NOS.50-52/KOL/2018 ITA NOS.2242-2244/KOL/2014 SHAMBHU KUMAR MORE A.YR.2004-05, 2005-06 &2006-07 2 ASSESSEE I.E. WHETHER THE ASSESSEE HAD CONCEALED HI S PARTICULARS OF INCOME OR HAD FURNISHED INACCURATE PARTICULARS OF INCOME. 2. WE HAVE HEARD THE RIVAL SUBMISSIONS. IN THE FACT S AND CIRCUMSTANCES OF THE CASE AND FROM THE AFFIDAVIT FILED BY THE ASSESSEE, WE ARE I NCLINED TO RECALL THE EX PARTE ORDERS PASSED BY THE THIS TRIBUNAL VIDE ORDER DATED 04.05. 2017. ACCORDINGLY, THE MISCELLANEOUS APPLICATIONS OF THE ASSESSEE FOR THE 2004-05 TO 2006-07 ARE ALLOWED. 3. AT THE TIME OF HEARING WITH THE CONSENT OF THE L D. DR THE MAIN APPEALS ITSELF WERE TAKEN UP FOR ADJUDICATION. 4. THE ONLY COMMON ISSUE TO BE DECIDED IN THE MAIN APPEALS IS AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN UPHOLDING THE LEVY OF PENAL TY U/S 271(1)(C ) OF THE ACT, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND FRO M THE COPY OF NOTICES ISSUED U/S 274 READ WITH SECTION 271(1)(C ) OF THE ACT SUBMITT ED BY THE LD. AR BEFORE US, THE LD. AO HAD NOT STRUCK OFF THE RELEVANT PORTION MENTIONI NG THE SPECIFIC CHARGE OF OFFENCE COMMITTED BY THE ASSESSEE I.E. WHETHER THE ASSE SSEE HAS CONCEALED HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. WE FIND THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE CO-ORDINATE BENCH OF THIS TR IBUNAL IN THE CASE OF JEETMAL CHOURARIA IN I.T.A NO. 956/KOL/2016 DATED 01.12.201 7 WHEREIN IT WAS HELD 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 MANDAT E THAT THE RECORDING OF SATISFACTION ABOUT CONCEALMENT OF INCO ME MUST BE IN SPECIFIC TERMS AND WORDS AND THAT SATISFACTION OF A O MUST REFLECT FROM THE ORDER EITHER WITH EXPRESSED WORDS RECORDED BY THE AO OR BY HIS OVERT ACT AND ACTION. IN OUR VIEW THIS DECI SION IS ON THE 3 M.A.NOS.50-52/KOL/2018 ITA NOS.2242-2244/KOL/2014 SHAMBHU KUMAR MORE A.YR.2004-05, 2005-06 &2006-07 3 QUESTION OF RECORDING SATISFACTION AND NOT IN THE C ONTEXT OF SPECIFIC CHARGE IN THE MANDATORY SHOW CAUSE NOTICE U/S.274 O F 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 DATED 21.3.2017; (II) EARTHMOVING EQUIPMENT SERVICE CORPORATION VS. DCIT 22(2), MUMBAI, (2017) 84 TAXMANN.COM 51 (I II) MAHESH M.GANDHI VS. ACIT VS. ACIT ITA NO.2976/MUM/2016 DAT ED 27.2.2017. RELIANCE WAS PLACED ON TWO DECISIONS OF THE HONBLE BOMBAY HIGH COURT VIZ., (I) CIT VS. KAUSHALYA 216 I TR 660(BOM) AND (II) M/S.MAHARAJ GARAGE & CO. VS. CIT DATED 22. 8.2017. THIS DECISION WAS REFERRED TO IN THE WRITTEN 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 I N THE DECISION HAS BEEN 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, DOES NOT EITHER MANDATE THE GIVING OF NO TICE OR ITS ISSUANCE IN A PARTICULAR FORM. PENALTY PROCEEDINGS ARE QUASI -CRIMINAL IN NATURE. SECTION 274 CONTAINS THE PRINCIPLE OF NATURAL JUSTICE OF THE ASSESSEE BEING HEARD BEFORE LEVYING PENALTY. RULES OF NATURAL JUSTICE CANNOT BE IMPRISONED IN ANY STRAIGHT-JACKET FORMULA . FOR SUSTAINING A COMPLAINT OF FAILURE OF THE PRINCIPLES OF NATURAL J USTICE ON THE GROUND OF ABSENCE OF OPPORTUNITY, IT HAS TO BE ESTABLISHED THAT PREJUDICE IS CAUSED TO THE CONCERNED PERSON BY THE PROCEDURE FOL LOWED. THE ISSUANCE OF NOTICE IS AN ADMINISTRATIVE DEVICE FOR INFORMING THE ASSESSEE ABOUT THE PROPOSAL TO LEVY PENALTY IN ORDE R TO ENABLE HIM TO EXPLAIN AS TO WHY IT SHOULD NOT BE DONE. MERE MISTA KE IN THE LANGUAGE USED OR MERE NON-STRIKING OF THE INACCURAT E PORTION CANNOT BY ITSELF INVALIDATE THE NOTICE. THE ITAT MUMBAI BE NCH IN THE CASE OF DHANRAJ MILLS PVT.LTD. (SUPRA) FOLLOWED THE DECISIO N RENDERED BY THE JURISDICTIONAL HONBLE BOMBAY HIGH COURT IN THE CAS E OF KAUSHALYA (SUPRA) AND CHOSE NOT TO FOLLOW DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING FA CTORY (SUPRA). RELIANCE WAS ALSO PLACED BY THE ITAT MUMBAI IN THIS DECISION ON THE DECISION OF 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 SHOULD BE GIVEN AN OP PORTUNITY TO SHOW CAUSE. NO STATUTORY NOTICE HAS BEEN PRESCRIBED IN T HIS BEHALF. HENCE, 4 M.A.NOS.50-52/KOL/2018 ITA NOS.2242-2244/KOL/2014 SHAMBHU KUMAR MORE A.YR.2004-05, 2005-06 &2006-07 4 IT IS SUFFICIENT IF THE ASSESSEE WAS AWARE OF THE C HARGES HE HAD TO MEET AND WAS GIVEN AN OPPORTUNITY OF BEING HEARD. A MISTAKE IN THE NOTICE WOULD NOT INVALIDATE PENALTY PROCEEDINGS. 10. IN THE CASE OF EARTHMOVING EQUIPMENT SERVICE C ORPORATION (SUPRA), THE ITAT MUMBAI DID NOT FOLLOW THE DECISIO N RENDERED IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY (SUPRA) FOR THE REASON THAT PENALTY IN THAT CASE WAS DELETED FOR SO MANY R EASONS 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 PARTIES BEFORE THE GROUP OF ASSESSEES BEFORE THE KARNATAKA HIGH COURT IN THE CA SE OF MANJUNATHA 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 TRIBUNAL H ELD THAT ON PERUSAL OF THE NOTICE ISSUED UNDER SECTION 271(1)(C ) OF THE ACT, IT IS CLEAR THAT IT IS A STANDARD PROFORMA USED BY THE AS SESSING AUTHORITY. BEFORE ISSUING THE NOTICE THE INAPPROPRIATE WORDS A ND PARAGRAPHS WERE NEITHER STRUCK OFF NOR DELETED. THE ASSESSING AUTHORITY WAS NOT SURE AS TO WHETHER SHE HAD PROCEEDED ON THE BASIS T HAT THE ASSESSEE HAD EITHER CONCEALED ITS INCOME OR HAS FURNISHED IN ACCURATE DETAILS. THE NOTICE IS NOT IN COMPLIANCE WITH THE REQUIREMEN T OF THE PARTICULAR SECTION AND THEREFORE IT IS A VAGUE NOTICE, WHICH I S ATTRIBUTABLE TO A PATENT NON APPLICATION OF MIND ON THE PART OF THE A SSESSING AUTHORITY. FURTHER, IT HELD THAT THE ASSESSING OFFICER HAD MAD E ADDITIONS UNDER SECTION 69 OF THE ACT BEING UNDISCLOSED INVESTMENT. IN THE APPEAL, THE SAID FINDING WAS SET-ASIDE. BUT ADDITION WAS SU STAINED ON A NEW GROUND, THAT IS UNDER VALUATION OF CLOSING STOCK. S INCE THE ASSESSING AUTHORITY HAD INITIATED PENALTY PROCEEDINGS BASED O N THE ADDITIONS MADE UNDER SECTION 69 OF THE ACT, WHICH WAS STRUCK DOWN BY THE APPELLATE AUTHORITY, THE INITIATED PENAL PROCEEDING S, NOLONGER EXISTS. IF THE APPELLATE AUTHORITY HAD INITIATED PENAL PROC EEDINGS 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 PASSED BY THE APPELLATE AUTHORITY AS WELL AS THE ASSESSING AUTHORITY WAS SET-ASIDE BY ITS ORDER DATE D 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 ISSU ED UNDER SECTION 271(1)(C) IN THE PRINTED FORM WITHOUT SPECIFICALLY MENTIONING WHETHER THE PROCEEDINGS ARE INITIATED ON THE GROUND OF CONC EALMENT OF INCOME OR ON ACCOUNT OF FURNISHING OF INACCURATE PARTICULA RS IS VALID AND LEGAL? 2. WHETHER THE PROCEEDINGS INITIATED BY THE ASSESSI NG AUTHORITY WAS LEGAL AND VALID? THE HONBLE KARNATAKA HIGH COURT HELD IN THE 5 M.A.NOS.50-52/KOL/2018 ITA NOS.2242-2244/KOL/2014 SHAMBHU KUMAR MORE A.YR.2004-05, 2005-06 &2006-07 5 NEGATIVE AND AGAINST THE REVENUE ON BOTH THE QUESTI ONS. THEREFORE THE DECISION RENDERED BY THE ITAT MUMBAI IN THE CAS E OF EARTHMOVING EQUIPMENT SERVICE CORPORATION (SUPRA) IS OF NO ASSI STANCE TO THE PLEA OF THE REVENUE BEFORE US. 11. IN THE CASE OF M/S.MAHARAJ GARAGE & CO. VS. CI T DATED 22.8.2017 REFERRED TO IN THE WRITTEN NOTE GIVEN BY THE LEARNED DR, WHICH IS 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 (SUP RA) APPEARS TO HAVE BEEN REITERATED, AS IS EVIDENT FROM THE EXTRAC TS FURNISHED 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 T HE HONBLE BOMBAY HIGH COURT IN THE CASE OF SMT.KAUSHALYA (SUP RA). 13. IN THE CASE OF MAHESH M.GANDHI (SUPRA) THE MUM BAI ITAT THE ITAT HELD THAT THE DECISION OF THE HONBLE KARNATAK A HIGH COURT IN THE CASE MANJUNATHA COTTON & GINNING (SUPRA) WILL NOT B E APPLICABLE TO THE FACTS OF THAT CASE BECAUSE THE AO IN THE ASSESS MENT ORDER WHILE INITIATING PENALTY PROCEEDINGS HAS HELD THAT THE AS SESSEE HAD CONCEALED PARTICULARS OF INCOME AND MERELY BECAUSE IN THE SHOW CAUSE NOTICE U/S.274 OF THE ACT, THERE IS NO MENTIO N WHETHER THE PROCEEDINGS ARE FOR FURNISHING INACCURATE PARTICULA RS OR CONCEALING PARTICULARS OF INCOME, THAT WILL NOT VITIATE THE PE NALTY PROCEEDINGS. IN THE PRESENT CASE THERE IS NO WHISPHER IN THE ORDER OF ASSESSMENT ON THIS ASPECT. WE HAVE POINTED OUT THIS ASPECT IN TH E EARLIER PART OF THIS ORDER. HENCE, THIS DECISION WILL NOT BE OF ANY ASS ISTANCE TO THE PLEA OF THE REVENUE BEFORE US. EVEN OTHERWISE THIS DECISION DOES NOT FOLLOW THE RATIO LAID DOWN BY THE HONBLE KARNATAKA HIGH C OURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA) IN AS MUCH A S THE RATIO LAID DOWN IN THE SAID CASE WAS ONLY WITH REFERENCE TO SH OW CAUSE NOTICE U/S.274 OF THE ACT. THE HONBLE COURT DID NOT LAY DOWN A PROPOSITION THAT THE DEFECT IN THE SHOW CAUSE NOTICE WILL STAND CURED IF THE INTENTION OF THE CHARGE U/S.271(1) (C ) IS DISCERNI BLE FROM A READING OF THE ASSESSMENT ORDER IN WHICH THE PENALTY WAS INITI ATED. 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 HIGH COURT IS THAT ISSUANCE OF NOTICE IS AN ADMINIS TRATIVE DEVICE FOR INFORMING THE ASSESSEE ABOUT THE PROPOSAL TO LEVY P ENALTY IN ORDER TO ENABLE HIM TO EXPLAIN AS TO WHY IT SHOULD NOT BE DO NE. MERE MISTAKE 6 M.A.NOS.50-52/KOL/2018 ITA NOS.2242-2244/KOL/2014 SHAMBHU KUMAR MORE A.YR.2004-05, 2005-06 &2006-07 6 IN THE LANGUAGE USED OR MERE NON-STRIKING OF THE IN ACCURATE PORTION CANNOT BY ITSELF INVALIDATE THE NOTICE. THE TRIBUN AL BENCHES AT MUMBAI AND PATNA BEING SUBORDINATE TO THE HONBLE B OMBAY HIGH COURT AND PATNA HIGH COURT ARE BOUND TO FOLLOW THE AFORESAID VIEW. THE TRIBUNAL BENCHS 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, ONE IN FAVOUR OF THE ASSESSEE RENDERED BY THE HONBLE KARN ATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA) AND OTHER OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SMT.KAUSHA LYA. IT IS SETTLED LEGAL POSITION THAT WHERE TWO VIEWS ARE AVA ILABLE ON AN ISSUE, THE VIEW FAVOURABLE TO THE ASSESSEE HAS TO BE FOLLO WED. WE THEREFORE PREFER TO FOLLOW THE VIEW EXPRESSED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (S UPRA). 15. WE HAVE ALREADY OBSERVED THAT THE SHOW CAUSE N OTICE ISSUED IN THE PRESENT CASE U/S 274 OF THE ACT DOES NOT SPECIF Y THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEA LING PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCO ME. THE SHOW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT STRIKE OUT THE I NAPPROPRIATE WORDS. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT IMP OSITION OF PENALTY CANNOT BE SUSTAINED. THE PLEA OF THE LD. COUNSEL FO R THE ASSESSEE WHICH IS BASED ON THE DECISIONS REFERRED TO IN THE EARLIER PART OF THIS ORDER HAS TO BE ACCEPTED. WE THEREFORE HOLD THAT IM POSITION OF PENALTY IN THE PRESENT CASE CANNOT BE SUSTAINED AND THE SAM E IS DIRECTED TO BE CANCELLED. WE FIND THAT THIS TRIBUNAL IN THE AFORESAID CASE HA D PLACED RELIANCE ON THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SSAS EMERALD MEADOWS IN I.T.A. NO. 380 OF 2015 DATED 23.11.2015 WHEREIN THE HONBLE KARNATAKA HIGH COURT FOLLOWING ITS OWN DECISION IN THE CASE OF CIT VS. M ANJUNATHA COTTON & GINNING FACTORY REPORTED IN 359 ITR 565 TOOK A VIEW THAT IMPOSING P ENALTY U/S 271(1)(C ) OF THE ACT IS BAD IN LAW AND INVALID FOR THE REASON THAT SHOW CAU SE NOTICE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETH ER IT IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS O F INCOME. WE FIND THAT AGAINST THIS DECISION OF HONBLE KARNATAKA HIGH COURT IN SSAS E MERALD MEADOWS (SUPRA), 7 M.A.NOS.50-52/KOL/2018 ITA NOS.2242-2244/KOL/2014 SHAMBHU KUMAR MORE A.YR.2004-05, 2005-06 &2006-07 7 REVENUE HAD PREFERRED SLP BEFORE THE HON'BLE SUPRE ME COURT WHICH WAS DISMISSED IN CC NO. 11485 OF 2016 DATED 05.08.2016. THIS TRIBUNA L IN THE CASE OF JEETMAL CHORARIA SUPRA HAD ALSO PLACED RELIANCE ON SEVERAL OTHER DEC ISIONS AND HAD COME TO A CONSCIOUS CONCLUSION THAT IT IS MANDATORY FOR THE LD. AO TO M ENTION IN THE SHOW CAUSE NOTICE ISSUED U/S 274 READ WITH SECTION 271(1)(C ) OF THE ACT BY MENTIONING A SPECIFIC CHARGE OF OFFENCE COMMITTED BY THE ASSESSEE AND BY STRIKI NG OUT THE INAPPROPRIATE WORDS CONTAINED THEREIN, ABSENCE OF WHICH WOULD MAKE THE ENTIRE SHOW CAUSE NOTICE ISSUED BY THE LD. AO DEFECTIVE. ACCORDINGLY, IT WAS HELD THAT NO PENALTY U/S 271(1)(C ) OF THE ACT COULD BE LEVIED PURSUANT TO SUCH DEFECTIVE SHOW CAU SE NOTICE. 6. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN IN TH E AFORESAID DECISION AND IN VIEW OF THE FACT THAT THE CASE WAS SQUARELY APPLICABLE TO T HE FACTS BEFORE US IN THE INSTANT APPEALS, WE HAVE NO HESITATION TO CANCEL THE PENALT Y LEVIED U/S 271(1)(C ) OF THE ACT FOR THE ASSESSMENT YEARS 2004-05 TO 2006-07. ACCORDINGL Y, GROUNDS RAISED BY THE ASSESSEE IN THESE ASSESSMENT YEARS ARE ALLOWED. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS AS WELL AS APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 13.04.2018 SD/- SD/- [S.S.VISWANETHRA RAVI] [ M. BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED : 13.04.2018 SB, SR. PS 8 M.A.NOS.50-52/KOL/2018 ITA NOS.2242-2244/KOL/2014 SHAMBHU KUMAR MORE A.YR.2004-05, 2005-06 &2006-07 8 COPY OF THE ORDER FORWARDED TO: 1. SAMBHU KUMAR MORE, FLAT NO. 202, BLOCK-A/1, VIP ENCLAVE, RAGHUNATHPUR, BAGUIHATI, KOLKATA-700059. 2. ACIT, CC-XXIII, KOLKATA 3. CIT(A)- , KOLKATA 4. C.I.T- 18, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECR ETARY HEAD OF OFFICE/ D.D.O., ITAT KOLKATA BENCHES