SUSHMA R. SINGH,DELHI vs. ITO 20(3)(3), MUMBAI

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ITA 3708/MUM/2017Status: DisposedITAT Mumbai30 January 2019AY 2009-103 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that since the additions forming the basis of the penalty were restored to the Assessing Officer, the penalty order could not survive. Therefore, the assessee's appeal was allowed.

What were the facts?

The assessee's appeal against a penalty order under Section 271(1)(c) was heard ex-parte. The additions on which the penalty was levied had been restored to the Assessing Officer by a previous Tribunal order.

What were the issues?

Whether a penalty under Section 271(1)(c) can be sustained when the underlying additions have been remanded back to the Assessing Officer for fresh adjudication.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 68,Section 69,Section 254(1)

AI-generated summary — verify with the full judgment below

PER PAWAN SINGH, JUDICIAL MEMBER; 1. This appeal by assessee under section 253 of the Income-Tax Act (the Act)

1.

is directed against the order of ld. Commissioner of Income-Tax-37, Mumbai (the ld. CIT(A) dated 18.01.2017, which in turn arises from the penalty order levied by the Assessing Officer under section 271(1)(c) of the Act dated 30.05.2015. The assessee has raised the following grounds of appeal:

1. That without prejudice, no proper and reasonable opportunity of hearing has been provided to the assessee of being heard.

2. That under the facts & circumstances of case, both the lower authorities erred in law & on merits in making and then sustaining the penalty on additions of Rs. 41,12,000/- u/s 68 which is being ale proceeds of gold ornaments.

3. That both the lower authorities erred on law and on merits on considering, declared income from salary Rs. 6,77,600/- & agriculture income Rs. Mum 2017-Sushma R. Singh.

10,59,674/- as income from other sources & thereafter making & sustaining penalties on above additions. 4. That under the facts & circumstances of case, both the lower authorities erred in law & on merits in making and then sustaining the penalty on addition of Rs. 13,30,000/- u/s 69 as unexplained investment in agricultural land. 2. None appeared on behalf of assessee despite the service of notice for more than one occasion. Therefore, we left no option except to hear the ld. Departmental Representative (DR) for the Revenue and to decide the appeal on the basis of material available on record. The ld. DR for the Revenue submits that the addition in the quantum assessment on the basis of which the penalty was levied has been restored back by the Tribunal to the file of Assessing Officer vide order dated 14.03.2017 in ITA No. 2859/Mum/2015.

Therefore, this appeal may also be restored to the file of Assessing Officer with the liberty to the Assessing Officer to take appropriate action after passing the order in pursuance of direction of the Tribunal in dated 14.03.2017.

3.

We have considered the submission of ld. DR for the Revenue and perused the material available on record. Perusal of record reveals that assessment was completed by Assessing Officer under section 144 dated 19.12.2011 wherein income of the assessee was determined at Rs. 71,93,950/- against the return of income of Rs. 17,30,950/- by making various additions/disallowances.

4.

On appeal before the ld. CIT(A), the action of Assessing Officer was confirmed in ex-parte order. On further appeal before the Tribunal, the 2 ITA No. 3708 Mum 2017-Sushma R. Singh. matter was remanded to the file of Assessing Officer to decide the issue afresh vide order dated 14.03.2017 in ITA No. 2859/Mum/2015.

Considering the fact that additions on the basis of which the penalty was levied by Assessing Officer has already been restored to the file of Assessing Officer, therefore, the penalty order passed under section 271(1)(c) dated 30.03.2015 will not survive. Thus, the appeal of assessee is allowed. However, the Assessing Officer would be at liberty to initiate fresh action under section 271(1)(c), if any, in accordance with law after completion of order giving effect of the direction of Tribunal in ITA No. 2859/Mum/2015.

5.

In the result, appeal of the assessee is allowed.

Order pronounced in the open court on 30/01/2019.

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