HARISH CHANDRA JAISWAL,KANPUR vs. DEPUTY COMMISSIONER OF INCOME TAX, KANPUR

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ITA 82/LKW/2018Status: DisposedITAT Lucknow18 January 20194 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that since the underlying additions on which the penalty was levied have been deleted, the penalty itself is not sustainable in law. Therefore, the penalty order and the CIT(A)'s confirmation are set aside.

What were the facts?

The assessee appealed against a penalty levied under section 271(1)(c) of the Income-tax Act. The penalty was based on additions made by the Assessing Officer. However, these additions were subsequently deleted by the Tribunal in a separate appeal.

What were the issues?

Whether a penalty under Section 271(1)(c) can be sustained when the additions forming the basis of the penalty have been deleted by the Tribunal.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 274

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, LUCKNOW BENCH “A”, LUCKNOW

Before: SHRI A.D JAIN & SHRI T.S. KAPOOR

For Appellant: Shri Ashish Jaiswal, Advocate
For Respondent: Shri C.K. Singh, DR
Hearing: 11/01/2019Pronounced: 18/01/2019

PER: A.D. JAIN, VICE PRESIDENT:

This appeal preferred by the assessee emanates from the order of the ld.

CIT(A)-IV, Kanpur dated 14/12/2017 confirming the penalty levied under

section 271(1)(c) of the Income-tax Act, by the Assessing Officer, taking

the following grounds:

“1. That the show cause notice u/s 274 rws 271(l){c) of the IT Act, 1961 is defective without specific charge making the penalty levied invalid and void ab initio. 2. That the Id.CIT(A) has erred in confirming the penalty levied u/s 271(l)(c) of the IT Act, 1961. 3. That the penalty cannot be levied on the addition made on the basis of assumption and presumption without any corroborative evidence.

2 ITA No. 82/Lkw/2018

4.

That the penalty should be adjudicated independently as the addition may be sustainable for the purpose of quantum addition but not for the purpose of penalty proceeding. 5. That the Id.CIT(A) has erred in confirming the penalty by passing non-speaking order, 6. That the penalty levied by the Id.AO u/s 271(l)(c) of the Act is arbitrary and unlawful.” 2. During the course of hearing, the ld. A.R. of the assessee invited

our attention to the fact that the addition, on which penalty has been levied, was deleted by the Tribunal vide its order dated 23.03.2018 in IT(SS)A No.272/Lkw/2017. In the light of these facts, when the addition, for which penalty was levied, has been deleted, the impugned penalty is not sustainable in the eyes of law.

3.

The ld. D.R., on the other hand, simply placed reliance on the order of the ld. CIT(A).

4.

We have perused the case record and heard the rival contentions. Having carefully perused the order of the Tribunal dated 23/3/2018 in IT(SS)A No.272/LKW/2017 in the quantum, we find that the addition, for

which penalty was levied, has been deleted by the Tribunal. In the absence of addition, penalty levied under section 271(1)(c) of the Act is not sustainable in the eyes of law. We, therefore, set aside the order of

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the ld. CIT(A) and delete the penalty levied by the AO u/s 271(1)(c) of the

Act.

5.

In the result, the appeal is allowed.

(Order pronounced in the open court on 18/01/2019)

Sd/- Sd/- (T.S. Kapoor) (A.D. Jain) Accountant Member Vice President

Aks – Dtd. 18/01/2019 Copy of order forwarded to: (1) The appellant (2) The respondent (3) Commissioner (4) CIT(A) (5) Departmental Representative (6) Guard File By order Assistant Registrar

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1.

DATE OF DICTATION 11.01.2019 2. DATE ON WHICH TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16.01.2019 2.A DATE ON WHICH TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER………………… 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE PS/SR.P.S………………… 4. DATE ON WHICH THE ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT…………………… DATE ON WHICH THE ORDER COMES BACK TO PS/SR.P.S…………… 5. DATE OF UPLOADING THE ORDER ON WEBSITE……………………………….. 6. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO………………… 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK……………………. 8. DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT………….... 9. DATE ON WHICH THE FILE GOES TO THE O.S. ……………………… 10. 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER……………………………… 12. THE DATE ON WHICH THE FILE GOES TO DESPATCH SECTION FOR DESPATCH OF THE TRIBUNAL ORDER……………………………… DATE OF DESPATCH OF ORDER…………………… 13.

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