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Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI MANOJ KUMAR AGGARWAL
Date of Hearing – 11.04.2019 Date of Order – 29.05.2019
O R D E R PER SAKTIJIT DEY. J.M.
The aforesaid appeal has been filed by the assessee challenging the order dated 11th December 2017, passed by the learned Commissioner (Appeals)–24, Mumbai, confirming penalty of ` 2,33,38,168, imposed under section 271(1)(c) of the Income Tax Act, 1961 (for short "the Act") for the assessment year 2010–11.
2 Anushakti Chemicals & Drugs Ltd. 2. At the outset, the learned Counsel for the assessee submitted that the issues relating to various additions on the basis of which penalty under section 271(1)(c) of the Act was imposed, in the meanwhile, have been restored back to the Assessing Officer by the Tribunal while deciding assessee’s quantum appeal in ITA no. 2079/Mum./2015, dated 24th April 2017.
The learned Authorised Representative submitted, in the assessment order passed in pursuance to the Assessing Officer has not initiated any penalty proceedings under section 271(1)(c) of the Act. Thus, he submitted, the impugned order passed by the Assessing Officer imposing penalty under section 271(1)(c) of the Act is not sustainable.
The learned Departmental Representative also agreed with the aforesaid submissions of the learned Authorised Representative.
We have considered rival submissions and perused the material on record. It is evident from the facts on record that in the original assessment order, the Assessing Officer made certain additions and also changed the head of income in respect of certain items of income which resulted in determination of total income at ` 5,97,05,484. On the basis of the aforesaid additions/disallowances the Assessing Officer has initiated proceedings for imposition of penalty under section 271(1)(c) of the Act and ultimately passed order imposing penalty
3 Anushakti Chemicals & Drugs Ltd. under the said provisions. The imposition of penalty was also confirmed by the learned Commissioner (Appeals). However, the Tribunal while deciding the quantum appeal of the assessee in the order referred to above restored all the issues to the Assessing Officer for fresh adjudication. In the assessment order passed in pursuance to the directions of the Tribunal, the Assessing Officer has accepted some of the claim of the assessee and decided a couple of issues against the assessee. However, as could be seen from the fresh assessment order, the Assessing Officer had not initiated any proceeding for imposition of penalty under section 271(1)(c) of the Act. Be that as it may, once the additions / disallowances on the basis of which penalty under section 271(1)(c) of the Act lost its existence due to the order passed by the Tribunal in quantum appeal filed by the assessee, penalty under section 271(1)(c) of the Act cannot survive. In view of the aforesaid, we are inclined to delete the penalty imposed under section 271(1)(c) of the Act. Grounds are allowed.