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Income Tax Appellate Tribunal, DELHI BENCH ‘C’, NEW DELHI
ORDER
Per N. K. Saini, AM:
This is an appeal by the assessee against the order dated 07.09.2016 of ld. CIT(A)-XXVI, New Delhi.
The only grievance of the assessee in this appeal relates to the confirmation of penalty amounting to Rs.9,18,724/- levied by the AO u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act).
During the course of hearing, the ld. Counsel for the assessee at the very outset stated that this issue is squarely covered in assessee’s own case in & 6441/Del/2016 for the assessment years 2009-10 and 2011-
Harveer Singh Kalra 12 wherein by following the judgment of the Hon’ble Jurisdictional High Court in the case of Pr. CIT Vs Neeraj Jindal and Others (2017) 393 ITR 1, the issue has been decided in favour of the assessee (copy of the said order was furnished which is placed on record.
In his rival submissions, the ld. DR although supported the orders of the authorities below but could not controvert the aforesaid contention of the ld. Counsel for the assessee.
We have considered the submissions of both the parties and perused the material available on the record. In the present, it is noticed that the facts involved are similar to the facts involved in the assessment years 2009-10 and 2011-12 wherein the similar penalty levied by the AO u/s 271(1)(c) of the Act was deleted by the ld. CIT(A) and on appeal of the department, the said order of the ld. CIT(A) was affirmed. The relevant findings have been given in paras 11 & 12 of the ITAT order dated 31.05.2017 in & 6441/Del/2016, which read as under: “11. I have considered the submissions of both the parties and carefully gone through the material available on the record. It is noticed that an identical issue has been decided by the Hon’ble Jurisdictional High Court in the case of Pr. CIT Vs Sh. Neeraj Jindal and Others (2017) 393 ITR 1 (supra) wherein their lordships in para 21 has held as under:
Harveer Singh Kalra “21. Thus, it is clear that when the AO has accepted the revised return filed by the assessee under Section 153A, no occasion arises to refer to the previous return filed under Section 139 of the Act. For all purposes, including for the purpose of levying penalty under Section 271(1)(c) of the Act, the return that has to be looked at is the one filed under Section 153A. In fact, the second proviso to Section 153A(1) provides that "assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this subsection pending on the date of initiation of the search under Section 132 or making of requisition under Section 132A, as the case may be, shall abate." What is clear from this is that Section 153A is in the nature of a second chance given to the assessee, which incidentally gives him an opportunity to make good omission, if any, in the original return. Once the A.O. accepts the revised return filed under Section 153A, the original return under Section 139 abates and becomes non- est. Now, it is trite to say that the "concealment" has to be seen with reference to the return that it is filed by the assessee. Thus, for the purpose of levying penalty under Section 271(1)(c), what has to be seen is whether there is any concealment in the return filed by the assessee under Section 153A, and not vis-a vis the original return under Section 139.”
In the present case also the income returned by the assessee u/s 153A of the Act has been accepted by the AO and once the AO accepts the revised return filed u/s 153A of the Act, the original return u/s 139 of the Act abates and becomes non-est. Therefore, in view of the ratio laid down by the Hon’ble Jurisdictional High Court, the concealment has to be seen with reference to the return which has been filed by the assessee for the purpose of levying penalty u/s 271(1)(c) of the Act, what has to be seen is whether there is any Harveer Singh Kalra concealment in the return filed by the assessee u/s 153A and not vis-à-vis the original return filed u/s 139 of the Act. In the present case, the same income has been accepted which was returned by the assessee, therefore, the penalty u/s 271(1)(c) of the Act was not leviable. Accordingly, we do not see any merit in this appeal of the department.”
Since, the facts for the year under consideration are similar to the facts involved in & 6441/Del/2016 for the assessment year 2009-10 and 2011-12. So, respectfully following the aforesaid referred to order dated 31.05.2017, the impugned penalty levied by the AO and sustained by the ld. CIT(A) is deleted.
In the result, the appeal of the assessee is allowed. (Order Pronounced in the Court on 21/12/2017)