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Income Tax Appellate Tribunal, DELHI BENCH: ‘D’ NEW DELHI
Before: SMT DIVA SINGH & SHRI PRASHANT MAHARISHIShri Kislaya Prashar, Advocate Shri Shivansh Pandya, Advocate
PER DIVA SINGH, JUDICIAL MEMBER :
The present appeal has been filed by the Revenue assailing the correctness of the order dated 23.02.2015 of CIT (A)-V, New Delhi pertaining to 2009-10 assessment year on the following grounds :-
“1. That on the facts and circumstances of the case & in law, the Ld. CIT (A) has erred in deleting the penalty imposed on u/s 271(1)(c), as the assessee has failed to provide a valid explanation or reason for not disclosing true/complete receipts as income during the year, through, the refund on TDS was fully claimed for whole amount.
That the order of the Ld. CIT (A) is erroneous and is not tenable on facts and in law.
That the grounds of appeal are without prejudice to each other.”
2. At the time of hearing, the ld. AR, Ms. Ananya Kapoor appearing for the assessee, inviting our attention to the order in dated 11.08.2016 passed by the coordinate Bench in the quantum proceedings, submitted that the issue has been set aside to the file of the AO with a direction to make a proper examination. It was the submission of the ld. AR that pursuant to the said order, the AO passed an order u/s 143(3)/254 dated 26.12.2017 wherein the addition has been largely sustained and as a result of that the AO has also passed a penalty order dated 20.06.2018. In these circumstances, it was her prayer that the departmental appeal is not maintainable in the very same assessment year as two penalty orders cannot be said to survive qua the same addition.
3. Ld. Senior DR, considering the record, posed no objection. 4. We have heard the submissions and perused the material on record. We find that in the peculiar facts and circumstances of the present case, though the CIT (A) has quashed the penalty order in the present proceedings, however, even otherwise we find that once the issue in the quantum appeal has been set aside, the penalty order passed by the AO as a result of the assessment order which stood set aside cannot survive. Noting the fact that even though it has been quashed in the present proceedings by the CIT (A), the appeal of the Revenue on the threshold itself in view of these facts cannot survive. Accordingly, the appeal of the Revenue is dismissed. The said order was pronounced in the open court at the time of hearing itself. 5. In the result, the appeal of the Revenue is dismissed.