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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI C.M. GARG & SHRI O.P. MEENA
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.
In both these appeals, the revenue has taken the following
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.”
Being aggrieved with the above order of the Commissioner of
Income Tax (Appeals), the revenue is in appeal before the Tribunal.
The learned DR submitted that the department has filed
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.
We have considered the submissions of the learned DR in the
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.
In the result, we hold that the penalty levied by the Assessing
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.
In the result, both the appeals of the revenue stand 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/