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(xix) "Orbit Enterprises Vs. ITO", ITA Nos. 1596 & 1597/Mum/2014, Order dated 01.09.2017.

9. Per contra, the ld. DR has relied on:

(a) "CIT vs. S.V. Angidi Chettiar", 44 ITR 739 (SC).
(b) "Sanjay Kumar & Ajay Kumar vs. ITO, Agra", ITA Nos.53 & 54/Agra/2015, dated 19.05.2017.
(c) "Mak Data (P) Ltd. vs. CIT", Civil Appeal No.9772/2013 (SC).
(d) "Gujarat State Financial Services Ltd. vs. ACIT", in ITA Nos.2078/Ahd/2006 & 2526/Ahd/206.

13. Regarding 'Sanjay Kumar' & 'Ajay Kumar' (supra), as per the assessee, in both the referred cases, the ITAT, Agra Bench had quashed the penalty orders in ITA Nos. 53 & 54/Agra/2015 vide consolidated order dated 19.05.2017, following the judgment of 'Manjunatha Cotton' (supra) and after distinguishing the cases relied on by the Revenue, namely, 'Mak Data (P) Ltd.' (supra), 'K.P. Madhusudhanan' (supra), 'Zoom Communication Pvt. Ltd.' (supra) & 'S.V. Angidi Chettiar' (supra). This is not disputed.

14. In "Mak Data (P) Ltd." (supra), the Hon'ble Supreme Court has held that the AO has to satisfy himself as to whether the penalty proceedings be initiated or not during the course of the assessment proceedings and the AO is not required to record his satisfaction in a particular manner, or to reduce it into writing. In the case before us, the assessee has not raised the issue of satisfaction and, therefore, reliance on "Mak Data" (supra) by the Department is misplaced.

15. In "Gujarat State Finance Services Ltd. Vs ACIT- Circle-IV, Ahmedabad", in ITA No. 2078/Ahd/2006, the ground raised by the assessee for adjudication was as under:

40. In "Uma Shankar Agarwal vs. DCIT" (supra), where the assessee therein challenged the legality of the penalty order on the ground of "No satisfaction" and "Show cause Notice without specific charge", the Tribunal, vide Order dated 20.01.2016, after due consideration of 'MAK Data (P) Ltd', which was relied on by the Department, held the penalty unsustainable in law.

41. In "Suvaprasanan Bhatacharya vs. ACIT" (supra), vide Order dated 06-11- 2015, the Tribunal after considering 'Mak Data', (supra) deleted penalty levied under section 271(1)(c) on the ground of "No Satisfaction" recorded in the assessment order and the notice having been issued on both the charges without specifying the exact charge.