SATYA HARI SAMUI,HOWRAH vs. ITO, WARD - 46(4), KOLKATA, KOLKATA

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ITA 792/KOL/2018Status: DisposedITAT Kolkata14 October 2020AY 1998-992 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 the penalty cannot survive when the basis for it has been removed by the remittal of the quantum assessment. Therefore, the penalty was cancelled, but the AO was given liberty to initiate fresh penalty proceedings if permissible after the fresh assessment.

What were the facts?

The assessee appealed against a penalty order for AY 1998-99. The quantum appeal for the same assessment year had previously been set aside and remitted back to the AO for fresh adjudication.

What were the issues?

Whether a penalty under Section 271(1)(c) can be sustained when the underlying assessment has been set aside and remitted for fresh adjudication.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “C” BENCH: KOLKATA

Before: Hon’ble Shri P.M. Jagtap, V.P (KZ) & Hon’ble Shri A. T. Varkey, JM

This is an appeal preferred by the assessee against the order of Ld. CIT(A),14, Kolkata dated 21-02-2018 for the assessment year 1998-99.

2.

At the outset itself, Shri Soumitra Choudhury, Advocate, Learned Authorised Representative ( in short, the ‘Ld.AR) brought our notice that in the quantum appeal preferred by the assessee against the order(s) of the AO/Ld. CIT(A) for AY 1998-99 has been set aside back to the file of the AO for fresh adjudication on certain direction given by an order dated 09-09-2020 in in assessee’s own case. Therefore, according to the Ld. AR since the provisions for imposing penalty has been removed by the Tribunal (supra), the penalty will not survive.

3.

Per contra, Shri Jayanta Khanra, JCIT, Learned Sr.DR ( in short, the ‘ Ld. DR’) opposing vehemently the said plea of the assessee contended that even though the Tribunal has remitted the issue back to the AO for fresh adjudication. However, there should be at liberty to the AO to initiate the penalty proceedings as per law, if any, addition(s) is made as per law.

Satya Hari Samui 4. We have heard both the parties and perused the records. We note that in the quantum assessment in assessee’s own case for the AY 1998-99 (supra) has been set aside back to the AO for fresh assessment by an order dated 09-09-2020 (supra). Since this fact could not be controverted by the Ld. DR ( copy of the said order dated 09-09-2020 is available on record), we note that vide order dated 09-09-2020 in assessee’s own case (supra) for the AY under consideration the Tribunal has remitted the issue back to the AO for fresh assessment. In the backdrop of this scenario, we note that the penalty u/s. 271(1)( c) cannot survive when the basis/foundation has gone. Therefore, we cancel the impugned penalty imposed by the AO vide his order dated 27-09-2016. However, the AO is at liberty to initiate penalty proceeding if law permits in accordance with law after making fresh assessment.

5.

In the result, the appeal of assessee is allowed. Order is pronounced in the open court on 14 October, 2020.

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