VIJAYKUMAR JAGANNATH AGGARWAL,MUMBAI vs. INCOME TAX OFFICER, 1(1)(1), MUMBAI

IN THE INCOME-TAX APPELLATE TRIBUNAL “F” BENCH,
MUMBAI
BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER
&
SHRI PRABHASH SHANKAR, ACCOUNTANT MEMBER

ITA 2171/MUM/2024
(A.Y. 2014-15)

Vijaykumar Jagannath
Aggarwal,
233 Jagan Kutir,
Shere Punjab Mahakali Cave R
Andheri East, Mumbai - 400
093,Maharashtra v/s.
बनाम
Income
Tax
Officer
1(1)(1), Aayakar Bhawan,
Mumbai–400 020,
Maharashtra
स्थायी लेखा सं./जीआइआर सं./PAN/GIR No: AABPA6771B
Appellant/अपीलार्थी
..
Respondent/प्रतिवादी

Appellant by :
Shri Haridas Bhatt,AR
Respondent by :
Ms. Nidhi Agarwal (Sr. DR)

Date of Hearing
13.01.2025
Date of Pronouncement
15.01.2025

आदेश / O R D E R

PER PRABHASH SHANKAR [A.M.] :-

The present appeal arising from the appellate order dated
03.04.2024 is filed by the assessee against the order passed by the Learned
Commissioner of Income-tax (Appeals)/National Faceless Appeal Centre,
Delhi [hereinafter referred to as “CIT(A)”] pertaining to penalty order passed u/s. 271(1)(c) of the Income-tax Act, 1961 [hereinafter referred to as “Act”] dated 15.02.2022 as passed by NFAC, Delhi for the Assessment
Year [A.Y.] 2014-15. P a g e | 2
A.Y. 2014-15

VijayKumar Jagannath Aggarwal

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VijayKumar Jagannath Aggarwal d. The said share sale and purchase transactions were made in the Stock market with registered brokers and properly reflecting in the Demat
Statements.
3. The appellant, therefore, prays that penalty charged of Rs. 2,39,004/- may please be deleted.
3. Facts in brief are that in this case certain cash credit addition was made by invoking the provisions of section 68 of the Act by the ld.AO while passing the assessment order. It is noticed that addition made in the order is in respect of LTCG of Rs. 2,39,004/-w.r.t. Penny stock transactions. The AO treated such capital gains as non genuine and treated as unexplained income u/s 68 of the Act. Perusal of the penalty order dated
15.02.2022 reveals that the same has been passed in ex parte manner by the way of Faceless penalty proceedings. In the penalty order, the AO took note of the appellate order dated 22.05.2018 claiming it to be dismissal of quantum appeal of the assessee by the ld.CIT(A).Further, in the subsequent appeal filed by the assessee against the said penalty order, the ld.CIT(A)/NFAC upheld the penalty order holding the same view that assessment order was confirmed in the quantum appeal though the appellant him requested to keep the proceedings in abeyance stating that the quantum appeal was pending for adjudication. However, the ld.CIT(A) rejected the request by observing that as per records, it was seen that the assessment for AY 2014-15 in the appellant's case was completed u/s 143(3) on 30-12-2016. The appeal was disposed by the CIT(A)-16, Mumbai

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A.Y. 2014-15

VijayKumar Jagannath Aggarwal in Appeal No.CIT(A)-16/DCIT- 9(1)(1)/IT-336/2016-17 dated 22-05-2018, dismissing the appeal for statistical purposes. In the circumstances, it was not understood as to why the appellant claims pendency of quantum appeal. Accordingly, he held that there was no merit in the appellant's contention that the present appellate proceedings be kept pending.
Therefore, he went on to confirm the penalty order passed by the AO.
4. In the course of hearing before us, the ld.Authorised
Representative has clarified that the ld.CIT (A) erroneously confirmed the penalty under the pretext that the quantum appeal was dismissed by the NFAC. It is submitted that as a matter of fact, it has dismissed the appeal for statistical purpose only since the appeal was filed offline and giving opportunity to file it online.The CIT(A) is yet to dismiss the re-filed appeal on the merits of the case.He confirmed the penalty in haste without waiting for the disposal of the quantum appeal.
5. We have carefully considered all the relevant facts on record as also the rival contentions. As per records, it is seen that the assessment was completed u/s 143(3) on 30-12-2016. The appeal was disposed by the ldCIT(A)-16,
Mumbai in Appeal
No.CIT(A)-16/DCIT-
9(1)(1)/IT-
336/2016-17 dated 22-05-2018, dismissing the appeal for statistical

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A.Y. 2014-15

VijayKumar Jagannath Aggarwal purposes. Perusal of para 3 on page-3 of the appellate order dated
22.05.2018 as passed by the ld.CIT(A)-16,Mumbai clearly shows that according to him the appeal of the assessee was required to be e-filed as per the procedure laid down in Rules 45 and 46. Accordingly, the appeal filed was treated as non est. However, appellant was given the liberty to file appeal again with a request for condonation of delay. Consequently, the appeal was treated as dismissed for statistical purposes. Apparently, the ld
CIT(A) has misunderstood the whole issue as it appears that he did not go through the above para in correct perspective and went on treat the appeal of the assessee as dismissed by the earlier CIT(A) in the order dated
22.05.2018 and he himself upheld the penalty order though the quantum appeal was still pending for adjudication before CIT(A) himself.
6. In view of the above facts, it is evident that the penalty orders passed by the ld.AO and upheld by the ld.CIT(A) are premature and passed without appreciating the fact that the quantum appeal is still pending before the appellate authority. Consequently, finding sufficient force in ground no. I above, we set aside the penalty order restore it back to the ld.CIT(A) for passing it afresh in view of his decision in quantum appeal.
Rest of the grounds in ground no.II relating to merits of the case therefore, do not require any adjudication at this stage.

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A.Y. 2014-15

VijayKumar Jagannath Aggarwal

Place: म ुंबई/Mumbai
ददनाुंक /Date 15.01.2025
Lubhna Shaikh / Steno

आदेश की प्रयियलयि अग्रेयिि/Copy of the Order forwarded to :
1. अपीलार्थी / The Appellant
2. प्रत्यर्थी / The Respondent.
3. आयकर आयुक्त / CIT
4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT,
Mumbai
5. गार्ड फाईल / Guard file.

सत्यावपि प्रवि ////
आदेशानुसार/ BY ORDER,

उि/सहायक िंजीकार (Dy./Asstt.