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Income Tax Appellate Tribunal, [ DELHI BENCH “G”: NEW DELHI ]
Before: SHRI N. K. BILLAIYASHRI AMIT SHUKLA
O R D E R PER AMIT SHUKLA, J. M.
The aforesaid appeal has been filed by the assessee against the impugned order dated 27.07.2018 passed by the Commissioner of Income Tax (Appeals)–15, New Delhi, in relation to the penalty proceedings under Section 271(1)(c) of the Income Tax Act, 1961 (the Act) for assessment year 2004-05.
2. The grounds of appeal raised by the assessee are as under:-
“1. The Ld Commissioner of Income Tax (Appeals) has erred in law and on facts in dismissing the appeal of assessee - appellant by stating that “no compliance was made, against notice dated 14.05.2018 for fixing the date of hearing on Page | 1 23.05.2018” whereas, the assessee had already filed its reply for seeking adjournment on 22.05.2018 and as such, the appeal has wrongly been dismissed ex - parte by learned CIT (A).
That the learned Commissioner of Income Tax (Appeals) has failed to appreciate that, there was neither furnishing of any inaccurate particulars of income nor could it be validly held that there was any concealment of income on the facts of the case neither there was any specific finding by learned ACIT regarding furnishing of inaccurate particulars or concealment of income and as such, the penalty so levied is unsustainable in law and liable to be deleted as such. 2.1 That the learned Commissioner of Income Tax (Appeals) has further erred in law and on facts while sustaining the initiation of penalty proceedings without recording a valid satisfaction which is a prerequisite for initiation of penalty under Section 271(1)(c) of the Act.
3. That the Ld Commissioner of Income tax (Appeals) has further gone wrong in sustenance of levy of penalty of Rs. 1,29,49,542/- by ignoring the fact that all material facts relevant to said claim were duly furnished by assessee before lower authorities. 3.1 That the Ld Commissioner of Income tax (Appeals) has gone wrong in sustaining the penalty of Rs.1,29,49,542/- on debatable issue. 3.2 That the Ld Commissioner of Income tax (Appeals) has gone wrong in sustaining the penalty of Rs. 1,29,49,542/- on Accrued incentive even where similar disallowance was deleted by Ld CIT(A) in AY 2008 - 09 and AY 2006 - 07; 3.3 That the Ld Commissioner of Income tax (Appeals) has gone wrong in sustenance of levy of penalty on the issue of depreciation on OB vans whereas Ld Assessing Officer has himself allowed the depreciation only on written down value of OB vans [ i.e. after considering the depreciation in AY 2004-05] in the next assessment years i.e. AY 2005-06 onwards. “
The assessee mainly aggrieved by levy of penalty of Rs.1,29,49,542/- levied on following two additions:-
(i) Accrued Incentive Rs.2,05,69,764/- (ii) Depreciation on OB Vans Rs.1,55,26,521 3.1 At the outset, the learned Counsel for the assessee pointed out that in the quantum proceedings the Tribunal in (Del) of 2013 vide order dated 28.03.2019 have deleted both the additions vide para No. 10 and para No. 16 of the said order. Thus, penalty levied on the same addition cannot be sustained.
The ld. DR fairly conceded before us that both the additions stand deleted.
Since the very foundation on which penalty stand levied, stands deleted by the Tribunal, therefore, penalty has no legs to stand and the same is directed to be deleted.
In the result, appeal of the assessee is allowed.
Order pronounced in the open court on : 13/12/2021.