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Income Tax Appellate Tribunal, “E” Bench, Mumbai
Before: Shri B.R. Baskaran (AM)& Shri Pawan Singh (JM)
O R D E R Per B.R. Baskaran (AM) :-
All these appeals filed by the assessee are directed against the orders passed by Ld CIT(A)-53, Mumbai and they relate to the assessment years 2007-08 to 2009-10. In all these appeals, the assessee is challenging the orders passed by Ld CIT(A) confirming the penalty levied u/s 271(1)(c) of the Act.
We heard the parties and perused the record. The Ld A.R submitted that the Tribunal has passed the orders in quantum proceedings in all the three years under consideration, vide its order dated 21-03-2018 passed in to 1229/Mum/2012 relating to AY 2007-08 to 2009-10. He submitted that the Tribunal has quashed the assessment order passed for AY 2007-08 and 2008-09. He submitted that the Tribunal has deleted two additions in AY 2009-10 and restored one addition to the file of the AO in AY 2009-10. Accordingly the Ld A.R submitted that these three penalty orders shall not survive in view of the common order passed by the Tribunal in the quantum assessment proceedings.
2 M/s. Sarang & Associates
We heard Ld D.R and he did not controvert the submissions made by Ld A.R.
We have gone through the order dated 21.03.2018 (referred supra) passed by the co-ordinate bench of Tribunal in the quantum assessment proceedings. In paragraph 12 of the order, the Tribunal has quashed the assessment framed for AY 2007-08 and in paragraph 18 of the order, the Tribunal has quashed the assessment framed for AY 2008-09. Since the assessment order itself has been quashed for these two years, the relevant penalty orders shall not have independent legs to stand on its own. Accordingly we quash the orders passed by the tax authorities for AY 2007-08 and 2008-09.
In assessment year 2009-10, the penalty u/s 271(1)(c) of the Act was levied on the following additions:- (a) Addition u/s 69 of the Act - Rs.31.00 lakhs (b) Addition of cash shortage - Rs. 1.25 lakhs (c) Addition u/s 69C of the Act - Rs.10.00 lakhs
We notice that the Tribunal has deleted the addition of Rs.31.00 lakhs and the addition of Rs.1,25 lakhs, vide paragraph numbers 30 and 32 of the order. Hence the penalty levied on these two amounts is liable to be deleted. With regard to the amount of Rs.10.00 lakhs, we notice that the Tribunal has restored the same to the file of the AO, vide paragraph 33 of its order. Accordingly the penalty levied on the above said amount also shall not survive. We order accordingly. However, the AO may initiate penalty proceedings in the set aside proceeds, if he is satisfied so.
In the result, all the three appeals of the assessee are allowed. Order has been pronounced in the Court on 14.6.2018.