ASHWANI TALWAR,NEW DELHI vs. JCIT, MEERUT

The grounds raised in assessment year 2005-06 read as under- That on facts and in law penalty of Rs. 795,643/- u/s. 271(1)© has been wrongly imposed. Appellant has furnished full facts relating to the long term capital gains and has also filed the supporting documents in respect thereof. The AO without providing the material relied upon by the AO and without affording reasonable opportunity of being heard treated the long term capital gains shown by the assessee as the income from other sources. Therefore, on facts and in law and on grounds taken on basis adopted the penalty of Rs. 795,643/- deserves to be deleted in full.

Similar ground was raised in assessment year 2006-07 also. Since the issue involved in these appeals are common and therefore, the appeal were heard together and disposed of by this common order for the sake of convenience and brevity.

Brief facts of the case are that the pursuant to the search and seizure operation that were carried on 15.2.2018. Assessment u/s. 153A/143(3) of the Act was completed for both the assessment years and notice u/s. 271(1)© of the Act was issued on the ground furnishing of inaccurate particulars of income of the assessee. Ld. First Appellate Authority confirmed the penalty and therefore, the assessee is before us in these two appeals.

In this case, Notice of hearing to the assessee was sent by the Registered AD post. In spite of the same, neither the assessee nor its authorized representative appeared to prosecute the matter in dispute, nor did file any application for adjournment. Keeping in view the facts and circumstances of the present case and the issue involved in the present Appeal, we are of the view that no useful purpose would be served to issue notice again and again to the assessee, therefore, we are deciding the present appeal ex parte qua assessee, after hearing the Ld. DR and perusing the records available.

Ld. DR strongly relied upon the orders of the authorities below.

At the outset, it has come to our notice that quantum appeals in respect of both the assessment years in & 3148/Del/2011 were disposed of by a common order dated 25.4.2012 by the Coordinate Bench of this Tribunal setting aside the orders of the First Appellate Authority remanding the matter to him for fresh disposal. It is further observed that that the First Appellate Authority, pursuant to the remand order, disposed of them by way of order dated 31.3.2017 against which the assessee preferred the ITA Nos. 3154-55/Del/2017 on 18.5.2017 and such appeals are pending disposal.

In these circumstances, the question that arises for our consideration is whether the penalty levied vide order dated 22.3.2012 would survive, especially in view of the fact that the assessment giving rise to such penalty order was subjected to the scrutiny of the Ld. First Appellate Authority for the second time, pursuant to the remand order passed by this Tribunal on 25.4.2012. In view of the fact that the First Appellate Authority modified the assessable income and the additions originally done by the AO in the assessment order dated 29.12.2009, and penalty has definite relationship with the additions, and in view of the fact that the order of the First Appellate Authority in the quantum appeals was set aside by this Tribunal vide order dated 25.4.2012, these two appeals do not survive, and it is for the Revenue to consider the penalty proceedings fresh with reference to the order of the Ld. First Appellate Authority passed on 31.3.2017, if the law of limitation permits. Subject to this observation, we find no adjudication is necessary in these two appeals in view of the change in the facts and accordingly, the penalty order dated 22.3.2012 is hereby quashed in respect of both the assessment years.

In the result, both the Appeals filed by the Assessee stand allowed.