THE ACIT, 4(1), INDORE vs. M/S. PHOENIX LEISURE & LIFE STYLE PVT.LTD., INDORE

PER SHRI C.M. GARG, JM

These appeals have been filed by the Revenue against

different orders of the learned CIT(A)-II, Indore, both dated

31.1.2017 in First Appeal Nos. IT-213/15-16/281 & IT-212/15-

16/279 the assessment years 2008-09 and 2009-10.

ACIT vs. M/s Phoenix ITA Nos. 294 & 295/Ind/2017 2. Notice of hearing was sent to the assessee by speed post at the

address given in Form No. 36 but the same was returned by the

postal authorities with the remark “Address Moved/Shifted”. We,

therefore, have no option but to proceed to decide the appeal ex-

parte. Accordingly, the learned DR was heard.

effective ground of appeal :-

“Whether on the facts and in the circumstances of the case, the ld. CIT(A) was justified in deleting the penalty u/s 271(1)(c) of Rs.2,50,00,000/- (A.Y. 2008-09), Rs.1,50,00,000/- based on decision of ITAT in quantum appeal which has not been accepted by the revenue and is sub judice before Hon'ble High Court. 3. Briefly stated, the assessments were made by the Assessing

Officer determining the total income of the assessee u/s 143(3) of

the Act. The matter went up to the Tribunal wherein the Tribunal

granted relief in quantum proceedings to the assessee by deleting

the entire addition made in the assessment order. In these cases,

the Commissioner of Income Tax (Appeals) held as under :-

“2.1Keeping in mind that the Hon'ble ITAT bench of Indore has

given relief to the appellant on quantum and has deleted the

ACIT vs. M/s Phoenix ITA Nos. 294 & 295/Ind/2017 entire additions so made, the order imposing penalty is no

longer tenable. Thus, keeping in mind the orders of Hon'ble

ITAT, the order imposing penalty is hereby cancelled. These

grounds of appeal are allowed.”

Income Tax (Appeals), the revenue is in appeal before the Tribunal.

appeal against the order of the Tribunal before the Hon'ble High

Court of Madhya Pradesh. Therefore, the Commissioner of Income

Tax (Appeals) was not justified in deleting the penalty only on the

basis of Tribunal order.

wake of the facts available on record. We may point out that the

learned DR has not controverted this fact that in the quantum

proceedings ITAT, Indore Bench, has given relief to the assessee

and the entire additions on which penalty has been levied u/s

271(1)(c) of the Act has been deleted and thus we have no hesitation

in holding that the Commissioner of Income Tax (Appeals) was right

in cancelling the penalty as when the additions have been deleted in

ACIT vs. M/s Phoenix ITA Nos. 294 & 295/Ind/2017 toto then the order of imposing penalty u/s 271(1)(c) of the Act

cannot be held as sustainable merely because the revenue has filed

appeal against the order of the Tribunal before the Hon'ble High

Court.

Officer was not sustainable in both these cases in view of the order

of the Tribunal in quantum appeal and, therefore, the

Commissioner of Income Tax (Appeals) was right in deleting the

same. Accordingly, the sole ground of the revenue in both the

appeals, being de void of merit, is dismissed.

The order has been pronounced in open Court on 30th May,

2017.

Sd/- sd/-

लेखा सद�य �या�यक सद�य (O.P.Meena) (C.M. Garg) Accountant Member Judicial Member May 30, 2017.

Dn/