DCIT, NEW DELHI vs. SH. UPINDER KUMAR WIDHANI, NEW DELHI

(ASSESSMENT YEAR: 2008-09) DCIT, vs Upinder Kumar Widhani, Circle-40(1), 513, Chandanwari Apartment, New Delhi. Sector-10, Dwarka, New Delhi. PAN-AAGPW5236J (Appellant) (Respondent) Appellant by Sh. Upinder Kumar Widhani, Assessee Respondent by Sh. Amit Jain, Sr.DR Date of Hearing 16.10.2017 Date of Pronouncement 16.10.2017 ORDER PER K.N.CHARY, JUDICIAL MEMBER Aggrieved by the order dated 29.05.2014 in appeal No.1508/12-13 passing by the Commissioner of Income Tax (Appeal) [in short “CIT(A)”]-XXX, New Delhi for 2008-09 Assessment Year, the Revenue is in appeal before us on the following grounds:-

“On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred (a) Deleting the penalty of Rs.12,27,424/- imposed by the Assessing Officer u/s 271(1)(c) of Income Tax Act, 1961 on quantum of addition of Rs.35,97,482/- made u/s 144 of I.T.Act, 1961 on account of unexplained investment in shares with M/s Religare Securities Pvt. Ltd. and various mutual funds. (b) Deleting the additions of Rs.35,97,482/- by accepting the fresh evidence without giving the Assessing Officer reasonable opportunity as per rule 46A(3) to examine the fresh evidence submitted by the assessee and not allowing reasonable time to AO to submit the remand report. (c) The appellant craves the right to alter, amend, add or substitute all and any of the grounds of appeal during the course of appeal.”

2. Briefly stated facts are that the return of income filed on 17.07.2008 by the assessee declaring a total income of Rs.3,20,190/- was scrutinized and by way of order dated 20.12.2010 passed u/s 144 of the Income Tax Act, 1961 (in short “Act”), the AO assessed the income at Rs.35,97,482/- on account of unexplained investments in shares & mutual funds. Simultaneously, proceedings u/s 271(1)(c) of the Act were initiated and concluded by order dated 10.06.2011 with the levy of penalty of Rs.12,27,424/-. In appeal, Ld.CIT(A) found that the addition u/s 144 of the Act was deleted in appeal No.- 1502/13-14 by way of order dated 28.05.2014, as such the penalty u/s 271(1)(c) levied by the AO vide order dated 10.06.2011 was also liable to be deleted. Aggrieved by the findings of the Ld.CIT(A), the Revenue is in appeal before us.

3. It is the argument of Ld. DR that deletion of the penalty imposed by the AO in respect of an addition of Rs.35,97,482/- on account of unexplained investments in shares from M/s Religare Securities Pvt. Ltd. and various Mutual Funds, is bad under law and the Ld.CIT(A) erred in accepting the fresh evidence without giving an opportunity to the AO. Per contra, it is the submission of the ld.AR that no additional evidence was relevant in this matter inasmuch as the Ld.CIT(A) deleted the penalty on account of the deletion of quantum in appeal as such this appeal is a misconceived one and is liable to be dismissed.

4. We have carefully gone through the record. Order of the Ld.CIT(A) reads that the reason for deleting the penalty is deletion of the quantum in appeal No.-1502/13-14 by order dated 28.05.2014. As a matter of fact, the order of the First Appellate Authority in deleting the quantum, addition was upheld by the Tribunal in vide order dated 19.08.2016. A copy of the order of the Tribunal upholding the deletion of quantum addition is produced before us and there is no conflict on this aspect. Since the quantum addition is no longer in existence, penalty cannot survive, as such this appeal is liable to be dismissed. We, therefore, by upholding the order of the Ld.CIT(A), find that this appeal is devoid of merits and is liable to be dismissed.

We order accordingly.

The order is pronounced in the open court on 16th October, 2017.