THE ACIT, CIRCLE-5(2), AHMEDABAD vs. SHRI AJAY JAYSUKHLAL MEHTA, AHMEDABAD

The captioned appeal has been filed at the instance of the Revenue against the order of the Learned Commissioner of Income Tax (Appeals)-5, Ahmedabad, dated 30/11/2018, whereby the Ld. CIT(A) has deleted imposition of penalty of Rs. 63,10,228/- under s. 271(1)(c) of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2009-2010.

None appeared on behalf of the assessee, therefore, after hearing the Ld. DR and considering materials available on record, we proceed to dispose of the appeal ex party qua the assessee-respondent.

Short fact sufficient for disposal of this appeal is that in the assessment proceedings under section 143(3) of the Act, the AO made an addition of Rs. 1,85,64,955/- on account of unexplained cash credits u/s 68 of the Act, which came to be confirmed by the Ld. CIT(A). The assessee carried the matter before the ITAT by way of second appeal and the ITAT vide order dated 28/09/2018 in had adjudicated the appeal and decided the issue in favour of the assessee. Thus, the ITAT has deleted the addition of Rs.1,85,64,955/-.

Being aggrieved by the order of learned CIT(A), the Revenue is in appeal before us.

On due consideration of the above facts and circumstances, we find that sub- clause (iii) of section 271(1)(c) provides mechanism for quantification of penalty. It contemplates that the assessee would be directed to pay a sum in addition to taxes, if any, payable him, which shall not be less than but which shall not exceed three times the amount of tax sought to be evaded by reason of concealment of income and furnishing of inaccurate particulars of income. In other words, the quantification of the penalty is depended upon the addition made to the income of the assessee. Since in the present case, basis for visiting the assessee with penalty has been extinguished by deleting addition by the Tribunal vide order dated 28/09/2018 (supra), the impugned penalty does not survive. In other words, there is no room for the Revenue to impose penalty under section 271(1)(c) in this case. The Ld. DR has not disputed the factual position of the case. Therefore, we uphold order of the Ld. CIT(A) and reject Revenue's appeal.

In the result, the appeal of the Revenue is dismissed.