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In (2020] 16 ITR-OL 3 (Mad) the counsel of the assessee for the first time before the High Court stated that the penalty notice did not state the exact charge as the notice reads that “the assessee concealed the particulars of income or furnished inaccurate particulars of income.” It is the argument that the word “or” has been used and not “and”. The AO did not apply his mind while issuing the notice to state as to whether he was of the prima facie view that the assessee concealed the particulars of income or furnished inaccurate particulars of income. Therefore it is his submission that this defect is inherent, which goes to the root of the matter and all consequential proceedings would have to be rendered as non est. decisions were pressed into service to substantiate the contention that if the notice does not specify as to which limb of section 271(1)(c) is attracted, the penalty proceedings are vitiated.
Refuting such argument the Court held that ‘Unfortunately, no such contention was advanced by the assessee at any earlier point of time and for the first time before this court such a contention is advanced. The submission of the learned counsel is that this, being the question of law, can be raised. We do not agree with the sub- mission for more than one reason. Firstly a defect in the notice, if according to the assessee would result in a jurisdictional error, is not merely a pure question of law, but a mixed question of fact and law. If such is the position, the vigilant assessee, more particularly, a listed company like the assessee before us should point out the factual issue at the very first instance. If that was not done by the assessee, then it goes to show that the assessee was not prejudiced by the use of the expression “or”.’
This roller coaster decision is bound to cause large disturbances in penalty cases.

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