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Income Tax Appellate Tribunal, DELHI “SMC” BENCH: NEW DELHI
Before: SHRI KUL BHARAT
ORDER PER KUL BHARAT, JM :
This appeal by the assessee is directed against the order of the Ld. CIT(A)-XXVI, New Delhi dated 13/06/2019 pertaining to the Assessment Year 2008-09. The assessee has raised following grounds of appeal:-
1) “That in the facts and circumstances of the case, the CIT(A) erred in confirming the order of A.O. in the levy of penalty u/s 271(l)(c).
2) That in the facts and circumstances of the case, the CIT(A) erred in confirming the order of A.O. that assessee had furnished inaccurate particulars of his income, and then proceeding to levy penalty u/s 271(l)(c) of Rs. 7,14,846/-.
3) That in the facts and circumstances of the case, the CIT(A) erred in confirming the order of A.O. wherein the A.O. had only on opinion of Valuation Officer, without any further corroboration, proceeded to levy penalty of Rs.7,14,846/-.”
The facts giving rise to the present appeal are that in this case, original return was filed on 20/07/2008 declaring total income at Rs. 3,08,260/- which was processed u/s 143(1) of the Income Tax Act, 1961. Subsequently, a search and seizure operation u/s 132 of the Act was carried out in the case of the assessee on 11/11/2010 thereafter assessment was completed u/s 143(3) read with Section 153A of the Act vide order dated 28/3/2016 at total income of Rs. 26,21,679/- against the returned income of Rs.3,08,260/- after making addition on account of unexplained difference in house property, cost of construction/repairs of Rs. 23,13,420/-. The Assessing Officer also initiated penalty proceeding on this addition and subsequently imposed penalty u/s 271(1)(c) of Rs. 7,14,846/-.
Aggrieved against the imposition of the penalty the assessee preferred an appeal before Ld.CIT(A), who after considering the material available on record sustained the penalty.
Aggrieved against the order of the Ld.CIT (A), the assessee is in appeal before this Tribunal.
At the outset, Ld. Counsel for the assessee submitted that the addition in quantum appeal on which the impugned penalty was imposed has already been deleted by the Tribunal in vide order dated 27/9/2021. The Tribunal in the quantum appeal in Para 24 of the order are as under:-
“24. We find that for Assessment Year 2008-09 order is also concluded assessment at the time of search on 10.11.2010 as notice u/s 143 (2) of the act would have been issued to the assessee only till 30/9/2009. Therefore the addition only could have been made for the assessee on the basis of the incriminating material found during the course of search. As the facts shown for Assessment Year 2006-07 that no incriminating material was found during the course of search. With respect to the above addition therefore, for the reason given by us for Assessment Year 2006-07 and 2007-08, the addition made in the hands of the assessee for this reason deserved to be deleted.
The Tribunal has already deleted the addition. Therefore, the penalty imposed upon such addition would also not survive. I, therefore, direct the Assessing Officer to delete the penalty. The grounds raised in this appeal are allowed.
The appeal of the assessee is allowed.
Above decision was pronounced on conclusion of Virtual Hearing in the presence of both the parties on 07th December, 2021.