DYANRAJ YASHWANT NIKAM,MUMBAI vs. ITO 17(1)(4), MUMBAI

O R D E R

PER RAVISH SOOD, JM

2. The Ld. CIT(A) erred in confirming the penalty of Rs.1,69,21,364/- levied under section 271(1)(c) by the Ld AO without appreciating that the entire turnover has been treated as income in an arbitrary manner. Thus the levy of penalty is not at all justified and the same may be deleted.

4. Without prejudice to the above the Ld. CIT(A) failed to appreciated that he has not allowed the additional evidence to show that the income determined in the assessment order is unjustified. Thus the addition to the income itself is not justified.

4. The appellant craves leave to add, alter rescind or amend any of the above grounds of appeal.”

2. Briefly stated, the assessee who is engaged in the business of clearing and forwarding agent had filed his return of income for A.Y. 2012-13 on 29.03.2013, declaring his total income at Rs.2,70,800/-. Assessment was framed by the A.O vide his order passed under Sec. 143(3)r.w.s 144, dated 23.03.2015 at an income of Rs.5,60,18,294/-. The A.O while framing the assessment had also initiated penalty proceedings under Sec. 271(1)(c) of the Act.

3. Subsequently, the A.O issued a „Show cause‟ notice under Sec. 271(1)(c), therein calling upon the assessee to explain as to why penalty under the said statutory provision may not be imposed on him. As the assessee failed to offer any explanation, therefore, the A.O after deliberating on the facts of the case imposed penalty under Sec.271(1)(c) of Rs.1,69,21,364/-.

4. Aggrieved, the assessee assailed the imposition of penalty under Sec. 271(1)(c) in appeal before the CIT(A). As the CIT(A) was not persuaded to subscribe to the claim of the assessee that no penalty under Sec. 271(1)(c) was liable to be imposed in his hands, therefore, he upheld the penalty levied by the A.O under Sec. 271(1)(c).

P a g e | DyanrajYashwantNikam Vs. Income Tax Officer-17(1)(4) 5. The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The ld. Authorized Representative (for short „A.R‟) for the assessee at the very outset of the hearing of the appeal submitted, that the assessee being aggrieved with the order of the CIT(A)-28, Mumbai, dated 01.03.2018, wherein the assessment framed by the A.O under Sec. 143(3) r.w.s 144 of the Act, dated 23.03.2015 was affirmed, had carried matter in appeal before the Tribunal. It was submitted by the ld. A.R that the Tribunal in all fairness had restored the assessment to the file of the A.O with a direction to pass a fresh order. It was averred by the ld. A.R that as the quantum assessment had been restored to the file of the A.O, therefore, the penalty proceedings may also be restored to his file.