SHRI PANKAJ C. MERCHANT L/H OF LATE MANJULABEN C. MERCHANT,SURAT vs. THE INCOME TAX OFFICER,WARD-3(3), SURAT

IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT Before Shri C.M.GARG, Judicial Member, and Shri O.P. MEENA, Accountant Member ITA No.813/AHD/ 2016/SRT Assessment Year: 2008-09 Pankaj C Merchant, ITO , Ward ~ 3(3), Surat L/H of Smt Manjulben C TI Merchant, 8-4, Pradakshina Vs. Apartment; Pratishta Complex Parle Point Surat: (Appellant) Respondent PA: No. ABCPMO998E Assessee by Shri Sapnesh Seth CA Revenue by Shri Rahul Kumar Sr . DR Final Date_of Hearing: 27 /12/2017 Date of Order: 12/01/2018 HC LO RD ER Per Shri C M_Garg_JM: This appeal is filed by the assessee against the order of the learned CIT (Appeals) II, Surat; dated 04.01.2016 passed under section 271(1)(c) of the Income Tax Act, 1961 for the assessment year 2008-09_ 2 In this appeal assessee has raised the following grounds of appeal which reads as under: On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) II has erred in Confirm ling the action of 274 2 Pankaj € Merchant ITA No.813/4/2016 Assessing Officer in imposing penalty of Rs: 6,29,181/- Uf s 271(1)(c) of the IT: Act, 1961_ (ii) It is therefore prayed that above penalty levied by Assessing Officer and confirmed by Commissioner of Income Tax (Appeals) may please be deleted 3 We have heard arguments from both the sides and carefully perused the relevant material placed on the record of the Tribunal; The Ld_ Authorized Representative (AR) submitted that ITAT Ahmadabad (SMC) Bench by order dated 29/11/2016 in ITA No. 1125/AHD/2013 for A.Y. 2008-09 has restored the issue of addition on account of deposits in the bank account therefore , penalty based on such addition cannot be held as sustainable. The Ld_ Departmental Representative (DR) candidly agreed to the fact that after restoration of issue to the file of Assessing Officer addition, on which penalty has been levied is not in existence hence, penalty may be cancelled. However , we are in agreement with the submission of the Ld_ DR that in case, Assessing Officer makes addition in the second round of proceedings then he may have all rights for initiation and imposition of penalty as per provisions of the Act. 4 In view of above submissions impugned penalty imposed by the Assessing Officer and confirmed by the Ld. CIT (A) is cancelled_ Before we part with the order, we find it appropriate to make it clear that the Assessing Officer may have all powers as provided in the Act for initiation and imposition of penalty #a 3 Pankaj C Merchant ITA No.813/A/2016 under section 271(1)(c) or any other relevant provision of the Act, if during the second round of proceedings he makes any addition and finds that penalty is required to be levied Accordingly, appeal of the assessee is allowed. In the result, appeal is allowed. Order pronounced in the open court on 12/01/2018 (O.P Meena) - (C.M. Garg) JUDICIAL MEMBER ACCOUNTANT MEMBER fa7iv /Dated : 12th January, 2018 Nhanu/LDC Copy to: Assessee/AO/Pr. CIT / CIT (A)/ITAT (DR) / Guard file_ By order 8 Uasze Ju_/ gakJit Assistant Registrar, Surat #oc 4ere qoifcr 31RR ericiry 3 wa 7n4ia, wr. 4 2x