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Facts
The assessee filed an appeal against an order confirming a penalty levied for unexplained cash credit. The original assessment order, which formed the basis for the penalty, was later set aside by the PCIT for fresh assessment.
Held
The Tribunal held that since the assessment order was set aside, the penalty order derived from it became void ab initio. Therefore, the appeal against the penalty confirmation was allowed.
Key Issues
Whether a penalty order is valid when the assessment order on which it is based has been set aside.
Sections Cited
250, 147, 143(3), 271(1)(c), 264
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Income Tax Appellate Tribunal, “B” BENCH KOLKATA
Before: Shri Rajesh Kumar & Shri Pradip Kumar Choubey
order
: November 14, 2025 ORDER
Per Pradip Kumar Choubey, Judicial Member:
This appeal filed by the assessee is directed against the order dated 19.01.2023 of the National Faceless Appeal Centre [‘CIT(A)’] passed under Section 250 of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) for the assessment year 2011–12.
The appeal has been filed by the assessee with a delay of 818 days. The assessee has filed an affidavit for condonation of the delay. After considering the reasons cited in the affidavit for condonation of delay, we find that the reasons are valid and consequently, the delay in filing the appeal is hereby condoned and we proceed to dispose of the appeal on merits.
Brief facts of the case are that the assessee is an individual and filed return of income for the assessment year under consideration Kavita Agarwal declaring total income of Rs.5,74,440/-. The Assessing Officer completed the assessee making an addition of Rs.4,02,000/- on account of unexplained cash credit and levied the penalty of Rs.86,835/- u/s 271(1)(c) of the Act.
3. Aggrieved by the said order, the assessee filed an appeal before the CIT(A) wherein the ld. CIT(A) dismissed the appeal of the assessee by confirming the penalty levied by the Assessing Officer.
Being dissatisfied, the assessee is in appeal before us. At the time of hearing, the ld. AR challenges the very impugned order thereby submitting that the order passed by the Assessing Officer 147/143(3) of the Act being the basis of the issuance of the penalty which had been set aside by the PCIT by an order dated 09.03.2021 u/s 264 of the Act by giving direction to the Assessing Officer to pass fresh assessment order and since the order passed by the Assessing Officer has been already set aside, the issuance of penalty order has occasion no come into force and the same is liable to be quashed.
Contrary to that, the ld. DR supports the impugned order dated 19.01.2023.
Upon hearing the submissions of the counsels of the respective parties, we have perused the records and find that in the case of the assessee, assessment order was passed u/s 147/143(3) of the Act on 04.12.2018 making an addition of Rs.4,02,000/- and penalty order dated 13.06.2019 u/s 271(1)(c) of the Act were passed. We also find that the assessee filed an application u/s 264 of the Act on 23.12.2020 for revision of assessment order dated 04.12.2018, the ld. PCIT vide order dated 09.03.2021 has set aside the assessment with a direction to verify the issues afresh. The relevant portion of the order dated 09.03.2021 of the ld. PCIT is as under: 2 6.1 Considering the above facts, we find substance in the argument of the ld. counsel and the penalty order dated 13.06.2019 passed u/s 271(1)(c) of the Act is void ab initio.
In the result, the appeal filed by the assessee is allowed.
Kolkata, the 14th November, 2025.