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Income Tax Appellate Tribunal, Hyderabad ‘ B ‘ Bench, Hyderabad
Before: Smt. P. Madhavi Devi & Shri S.Rifaur RahmanShri Sarat Chandra
Per Smt. P. Madhavi Devi, J.M.
This is assessee’s appeal for the A.Y 2009-10 against the order of the CIT (A)-6, Hyderabad, dated 05.12.2017 in confirming the penalty levied by the AO u/s 271(1)(c) of the Act. The assessee has raised the following grounds of appeal: “1 The order of the learned Commissioner of Income-tax ( Appeals) is erroneous in law and on the facts of the case. 2. The learned Commissioner of Income-tax (Appeals) ought to have condoned the delay in filing the appeal and decided the issue on merits. 3. The learned CIT(A) ought to have considered that the same office of learned CIT(A), on 04th April, 2017 passed the appellate order for the A.Y.2009-2010 deleting the addition made in the order u/s 144 r.w.s. 147 dated 27th February, 2015 by holding that the re-
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ITA No 280 of 2018 Sarat Chandra Srikanth Maguluri Hyderabad.
assessment proceedings were bad in law thereby the penalty levied basing on such re-assessment order is no longer maintainable. 4. The learned CIT(A) passed appellate order which does not survive since the assessment basing on which penalty was levied, was quashed by the CIT(A) before passing of the appellate order against the levy of penalty.
At the time of hearing, the learned Counsel for the assessee has filed before us the copy of the order of the CIT (A)-6, Hyderabad dated 4.4.2017 wherein the assessment order passed u/s 144 r.w.s. 147 of the Act for the A.Y 2009-10 was considered and the assessment itself has been held to be invalid. We find that the penalty has been levied against the additions made in the assessment u/s 144 r.w.s. 147 of the Act and such penalty has been confirmed by the CIT (A) against which the present appeal is filed. As pointed out by the learned Counsel for the assessee, the penalty is to be levied on the income which is sought to be evaded by the assessee. In the case before us, since the re-assessment itself has been held to be invalid, there is no case of any evasion of income. In view of the same, we are of the opinion that the penalty order has no legs to stand. The penalty order is accordingly set aside. 3. In the result, assessee’s appeal is allowed.
Order pronounced in the Open Court on 6th June, 2018.
Sd/- Sd/- (S.Rifaur Rahman) (P. Madhavi Devi) Accountant Member Judicial Member Hyderabad, dated June 2018. Vinodan/sps
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ITA No 280 of 2018 Sarat Chandra Srikanth Maguluri Hyderabad.
Copy to:
1 Sri Sarat Chandra Srikanth Maguluri, F.No.203, Prashanti Residency, 6-2-674/8/33 Road No.12, Banjara Hills, Hyderabad 500033 2 ITO Ward 14(2) Hyderabad6 3 CIT (A)-6, Hyderabad 4 Pr. CIT – 6, Hyderabad 5 The DR, ITAT Hyderabad 6 Guard File
By Order
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