MRS. SHARMA TYAGI,MUZAFFARNAGAR vs. ITO, MUZAFFARNAGAR

PDF · subscribers
ITA 2306/DEL/2015Status: DisposedITAT Delhi31 May 2018AY 2008-094 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that since the quantum of addition was remitted back to the Assessing Officer (AO) for re-determination, the penalty proceedings on the same amount should also be remitted to the AO. This decision was based on Supreme Court and High Court judgments.

What were the facts?

Additions were made to the assessee's income based on a difference in construction cost estimates for a banquet hall. The CIT(A) imposed a penalty under Section 271(1)(c) on this addition.

What were the issues?

Whether penalty proceedings under Section 271(1)(c) can be sustained when the underlying addition has been remanded to the Assessing Officer for fresh determination.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(1)Show list

Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.

Income Tax Appellate Tribunal, DELHI BENCHES : “C” : NEW DELHI

Before: SHRI R.S. SYAL & SMT. BEENA A. PILLAI

For Appellant: Shri Anil Jain, Advocate &, Ms Isha Jain, CA
For Respondent: Shri S.L. Anuragi, Sr. DR
Hearing: 30.05.2018Pronounced: 31.05.2018

ORDER PER R.S. SYAL, VP: This appeal filed by the assessee arises out of the order passed by the CIT(A) on 01.01.2015 imposing penalty u/s 271(1)(c) of the Income-tax Act, 1961 in relation to the assessment year 2008-09.

2.

Briefly stated, the facts of the case are that certain additions were made by the Assessing Officer in his order passed u/s 143(3) on 14.12.2011. The assessee preferred appeal before the ld. CIT(A). In such appeal proceedings, it was observed that the difference between the figures of investment in construction of Banquet Hall as per the report of the DVO and approved valuer, was Rs.3,24,467/- for which enhancement was made by the ld. first appellate authority. Pursuant to that, penalty of Rs.1,00,260/- was imposed vide order dated 01.01.2015 in relation to the addition made to the tune of Rs.3,24,467/-. The assessee is aggrieved against the imposition of penalty.

3.

After considering the rival submissions and perusing the relevant material on record, we find that the assessee approached the Tribunal against the enhancement made by the Assessing Officer. Vide order dated 22.08.2017, a copy of which has been placed on record, the Tribunal has remitted the matter to the file of Assessing Officer vide para 8.1 of its order with a direction to apply UP PWD rates for the purpose of ascertaining the cost of construction in investment in construction of banquet hall. Since the matter in quantum proceedings has been restored to the file of the Assessing Officer, we are of the considered opinion that it would be in the fitness of 2

1.

things if the matter concerning the penalty on such amount is also sent back to be decided in conformity with the view taken by the Assessing Officer in the proceedings pursuant to the directions given by the Tribunal. Our view in restoring the penalty to the AO is fortified by the judgment of the Hon’ble Supreme Court in the case of Mohd. Mohatram Farooqui vs. CIT (SC) 2010- TIOL-23-SC-IT in which it has been held that if addition is restored to the AO, then penalty should also be restored. The Hon’ble jurisdictional High Court in Sanjay Gupta vs. CIT (2014) 366 ITR 18 (Del) has also held that where the quantum has been remanded to the AO, the question of penalty on account of the said amount being treated as undisclosed income, should also be remanded to the AO. We, therefore, set aside the impugned order and remit the matter to the file of the AO for determining the question of imposition or otherwise of the penalty on this issue, after the passing of a fresh assessment order on this count. Needless to say, the assessee will be allowed a reasonable opportunity of hearing in this regard.

4.

In the result, the appeal filed by the assessee is allowed for statistical purposes.

The order pronounced in the open court on 31st May, 2018.

More judgments on Section 271(1)(c)

All 25,141 judgments and leading authorities on Section 271(1)(c) →

Recent GST High Court judgments

Search GST case law →