BURMAH DEVI W/O. GOKUL CHAND,REWARI vs. ITO, REWARI

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ITA 3162/DEL/2015Status: DisposedITAT Delhi28 November 2018AY 2009-104 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 penalty is not leviable at this stage as the entire assessment order was set aside. No foundation was left for the penalty, and the Assessing Officer was at liberty to initiate penalty proceedings after passing a fresh assessment order.

What were the facts?

The assessee challenged a penalty levied under section 271(1)(c) of the Income Tax Act. The original assessment order had been set aside by the ITAT and restored to the Assessing Officer for a fresh assessment.

What were the issues?

The primary issue was whether penalty under section 271(1)(c) could be levied when the underlying assessment order was set aside and remitted for de novo assessment.

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, DELHI BENCHES “B”: DELHI

Before: SHRI BHAVNESH SAINI & SHRI N.K. BILLAIYA

Hearing: 20.05.2019Pronounced: 03.06.2019

This appeal by Assessee has been directed against the Order of the Ld. CIT(A), Rohtak, Dated 25.03.2015, for the A.Y. 2009-2010, challenging the levy of penalty under section 271(1)(c) of the I.T. Act, 1961.

2 ITA.No.3162/Del./2015 Smt. Burmah Devi, Rewari. 1.1. Earlier, this appeal were dismissed for default which is restored by allowing M.A. of the assessee. Appeal of assessee was fixed for hearing on merits.

2.

In this case, A.O. passed the assessment order under section 143(3) dated 28.12.2011, determining the income of assessee at Rs.90,73,603/- as against returned income of Rs.4,75,900/-. The A.O. made three additions in the assessment order. The A.O. vide separate Order levied the penalty under section 271(1)(c) of the I.T. Act, 1961.

3.

Learned Counsel for the Assessee submitted that assessee challenged the quantum addition against the Order of the Ld. CIT(A) dated 04.12.2012 before ITAT, Delhi A-Bench in ITA.No.512/Del./2013 for the A.Y. 2009-2010, which have been decided by the Tribunal vide Order dated 29.01.2016 and the assessment order have been set aside to the file of A.O. with a direction to pass the assessment order denovo. Copy of the Order is placed on record, which fact is also not disputed by the Ld. D.R.

3 ITA.No.3162/Del./2015 Smt. Burmah Devi, Rewari.

4.

After considering the rival submissions, we are of the view that penalty is not leviable at this stage. Since the entire assessment order have been restored to the file of A.O. with a direction to pass the assessment order denovo by the Tribunal, therefore, penalty is not leviable at this stage because no foundation is left for levy of the penalty. In view of the above, we set aside the Orders of the authorities below and cancel the penalty. However, A.O. is at liberty to initiate the penalty proceedings after passing the assessment order afresh as per Law, if so advised. Appeal of Assessee is allowed.

5.

In the result, appeal of the Assessee allowed.

Order pronounced in the open Court.

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