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Income Tax Appellate Tribunal, AHMEDABAD “B” BENCH
Before: SHRI MAHAVIR PRASAD & SHRI AMARJIT SINGH
This appeal filed by the Revenue is directed against the order of the Commissioner of Income Tax (‘hereinafter called CIT(A)’) order no. CIT(A)-9/10025/ACIT(E), Cir- 2 . A.Y. 2011-12 1/17-18 order dated 19/11/2018 arising out of penalty order dated 17/03/2017. Revenue has taken following grounds of appeal:
1. Whether on the facts and in the circumstances of the case and in law the Id. CIT(Appeals) was justified in holding that the penalty of Rs.3,95,05,185/- levied under section 271(1)(c) of the Income tax Act, 1961, does not survive without appreciating the fact that the decision of the Hon. ITAT in respect of quantum appeal in assessment year 2011-12 has not attained finality, as the department has filed Special Leave Petition before the Hon'ble Supreme Court, against the decision of Hon. High Court in Tax Appeal No. 752 of 201.
2. The Revenue craves to add, alter, amend, modify, substitute, delete and/or rescind all or any Grounds of Appeal on or before the final hearing, in necessity so arises.
Facts of the case are that in this case, the assessment was finalized u/s. 144 of the I.T. Act treating the income shown as the assessed income. In the absence of the supporting evidences, the expenses made by the trust such as addition to assets, expenses on property, expenses for the object of trust, deficit on sale of property/items, exemptions claimed u/s. 11(1)(a) & 11(2) of the Act were not allowed and the income of assesse was assessed at Rs. 38,45,98,670/- and penalty proceedings u/s. 271(1)(c) were also initiated.
At the outset, Ld. A.R. contended that in quantum proceedings ITAT has set aside this issue back to the file of the Assessing Officer with the direction to the A.O. to thoroughly examine primary level record material and activities performed by the assesse accordingly and to decide afresh appeal of the assesse and prayed before us. Penalty proceedings appeal may also be set aside to the file of the A.O. to decide afresh along with quantum proceedings.
3 . A.Y. 2011-12 4. On the other hand, if matter is set aside to the file of the A.O. Ld. D.R. has no objection.
We have hard both the parties and gone through the impugned order. We think that prayer of the Ld. A.R. is justifiable and can be accepted as penalty proceedings is arising from a quantum proceedings since quantum proceedings has already been set aside to the file of the A.O. in vide order dated 23/01/2018 has already been set aside to the file of the ld. A.O. to decide afresh after considering all the material available with the ld. A.O. Thus, penalty appeal also set aside to the file of the ld. A.O. to decide afresh after giving an opportunity of being heard to the assesse and will decide as per law.
In the result, appeal field by the Revenue is allowed for statistical purposes. .
Order pronounced in Open Court on 15 - 03- 2021