ASHIMA NEB,NOIDA vs. ACIT CIRCLE-64(1), NEW DELHI
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Income Tax Appellate Tribunal, DELHI BENCH “A” DELHI
Before: SHRI PRADIP KUMAR KEDIA & SHRI NARENDER KUMAR CHOUDHRY
PER PRADIP KUMAR KEDIA, A.M.:
The captioned appeals have been filed at the instance of the assessee against the order of the Commissioner of Income Tax (Appeals)-XXI, New Delhi (‘CIT(A)’ in short), dated 04.02.2019 arising in the assessment order dated 27.03.2015 passed by the Assessing Officer (AO) under Section 143(3) r.w.s. 147/148 of the Income Tax Act, 1961 (the Act) concerning AYs 2009-10 and 2010- 11.
ITA No.3447/Del/2019 (Assessment Year 2009-10)
The grounds of appeal raised by the assessee reads as under: “1. On the facts and circumstances of the case, the ld. Assessing Officer has erred in imposing penalty u/s. 271(1)(c) after first keeping it in abeyance until disposal of appeal and, therefore,
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reviving it before disposal of first appeal and the ld. CIT(Appeals) has erred in upholding this action of the ld. Assessing Officer.”
The CIT(A) has disposed of the appeal of the assessee favourably as under: “6.1.7 I have carefully considered the written submissions of the appellant, appellate order passed by the Ld.CIT(A)-28 New Delhi mentioned supra, which clearly indicates that the assessment proceedings initiated by the Assessing Officer have been quashed holding as under: "3.4. In view of the above, it is held that neither the Assessing Officer was having any tangible material in his possession nor he could establish any link between the said material and formation of belief in the case of appellant. He has merely verified and reviewed the information already available in the return of income of the appellant and formed a belief that the income has escaped assessment in the case of the appellant. He is not even able to compute the actual amount of income escaped, rather estimated the amount on the basis of guess work, just to mention that the income escaped assessment is more than 1 Lakh to fulfill the condition as per provision of section of 149 of the Act. In such situation, the initiation of assessment proceedings u/s 147 of the act and issuance of notice u/s 148 of the Act are not valid in the case of appellant. Consequently, the reassessment proceedings in the said section are also held invalid. It is therefore, held that reopening of assessment proceedings and subsequent assessment proceedings in the case of the appellant are bad in law and without jurisdiction and deserve to be quashed. I therefore, quash the reassessment proceedings and allow the grounds taken by the appellant...’’ Similarly he has deleted the additions made by the Assessing Officer on the merits of the case observing in para 8.2 that the additions made by the Assessing Officer are deleted and grounds
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taken by the appellant are allowed. Considering the factual matrix of the case, it is evident and can be inferred that in order that the penalty proceedings should survive, the assessment proceedings should be live. Where an order of assessment and reassessment proceedings on the basis of which penalty has been levied, has itself finally been held to be quashed and additions have been deleted, penalty cannot stand by itself and the same is liable to be cancelled. Therefore, in the light of the above facts and discussion, penalty u/s. 271(1)(c) becomes infructuous. As a result, penalty of Rs.7,34,388/- is deleted. The grounds of appeal taken by the appellant to impugne the imposition of penalty, are allowed. ”
None appeared for the assessee when the matter was fixed for hearing.
In view of the relief granted by the CIT(A), we do not see any purport in the grievance of the assessee. The grounds of appeal raised by the assessee does not convey any subsisting grievance which warrants interference of the Tribunal. Accordingly, the appeal of the assessee is ex-parte dismissed as infructuous.
In the result, the appeal of the assessee is dismissed as infructuous.
ITA No.3448/Del/2019 (Assessment Year 2010-11)
The grounds of appeal raised by the assessee reads as under: “1. On the facts and circumstances of the case, the ld. Assessing Officer has erred in imposing penalty u/s. 271(1)(c) after first keeping it in abeyance until disposal of appeal and, therefore, reviving it before disposal of first appeal and the ld. CIT(Appeals) has erred in upholding this action of the ld. Assessing Officer.”
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The CIT(A) has disposed of the appeal of the assessee favourably as under: “6.1.7 I have carefully considered the written submissions of the appellant, appellate order passed by the Ld.CIT(A)-28 New Delhi mentioned supra, which clearly indicates that the assessment proceedings initiated by the Assessing Officer have been quashed holding as under: "3.5. In view of the above, it is held that neither the Assessing Officer was having any tangible material in his possession nor he could establish any link between the said material and formation of belief in the case of appellant. He has merely verified and reviewed the information already available in the return of income of the appellant and formed a belief that the income has escaped assessment in the case of the appellant. He is not even able to compute the actual amount of income escaped, rather estimated the amount on the basis of guess work, just to mention that the income escaped assessment is more than 1 Lakh to fulfill the condition as per provision of section of 149 of the Act. In such situation, the initiation of assessment proceedings u/s 147 of the act and issuance of notice u/s 148 of the Act are not valid in the case of appellant. Consequently, the reassessment proceedings in the said section are also held invalid. It is therefore, held that reopening of assessment proceedings and subsequent assessment proceedings in the case of the appellant are bad in law and without jurisdiction and deserve to be quashed. I therefore, quash the reassessment proceedings and allow the grounds taken by the appellant...’’ Similarly he has deleted the additions made by the Assessing Officer on the merits of the case observing in para 4.2 as under:
“4.2..I have considered the facts of the issue, basis of additions made by Assessing Officer and submissions of appellant. As can be seen from the assessment order as well as submissions of appellant, the Assessing Officer got information from FRR office and the departmental records as per intimation given that appellant had
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traveled Mauritius via UAE and stayed there for 15 days and estimated the expenses as per his free will to compute the unexplained expenditure on the part of appellant. He just visited some websites and estimated the flights cost and other expenses related to lodging and boarding and arrived to the conclusion that the appellant has incurred the expenditure to the extent of Rs. 4,74,927/- from undisclosed sources. Contrary to this, appellant has explained that she had stayed Mauritius and all the expenses for stay in Mauritius were borne equally by family members with whom she had gone there. It is also submitted that these facts were brought on record by her while submitting the intimation, required as per conduct rules. Since the Assessing Officer has no basis of estimating the expenditure on travel to Mauritius and stay therein by appellant, and the appellant ahs filed all the relevant details in respect of expenses incurred by it during the period of stay to the department, the addition made by Assessing Officer u/s 69C of the Act is not sustainable. I therefore delete the addition made by him and allow the ground taken by the appellant in this regard..”
Hence from the above it is clearly evident that addition made by the Assessing Officer has been deleted and grounds taken by the appellant are allowed. Considering the factual matrix of the case, it is evident and can be inferred that in order that the penalty proceedings should survive, the assessment proceedings should be live. Where an order of assessment and reassessment proceedings on the basis of which penalty has been levied, has itself finally been held to be quashed and additions have been deleted, penalty cannot stand by itself and the same is liable to be cancelled. Therefore, in the light of the above facts and discussion, penalty u/s. 271(1)(c) becomes infructuous. As a result, penalty of Rs.2,93,506/- is deleted. The grounds of appeal taken by the appellant to impugne the imposition of penalty, are allowed.” 9. None appeared for the assessee when the matter was fixed for hearing.
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In view of the relief granted by the CIT(A), we do not see any purport in the grievance of the assessee. The grounds of appeal raised by the assessee does not convey any subsisting grievance which warrants interference of the Tribunal. Accordingly, the appeal of the assessee is ex-parte dismissed as infructuous.
In the result, the appeal of the assessee is dismissed as infructuous.
In the combined result, both the appeals of the assessee are dismissed as infructuous. Order pronounced in the open Court on 11/05/2022.
Sd/- Sd/- [NARENDER KUMAR CHOUDHRY] [PRADIP KUMAR KEDIA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: /05/2022 Prabhat
