ALAG SECURITIES P.LTD,MUMBAI vs. DCIT CC (46), MUMBAI

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ITA 7646/MUM/2014Status: DisposedITAT Mumbai18 May 2018AY 2004-053 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that since the quantum appeal was restored to the AO for fresh assessment, the penalty order confirmed by the CIT(A) no longer survived. Therefore, the penalty appeal was also restored to the AO for fresh consideration.

What were the facts?

The assessee filed an appeal against a penalty order under Section 271(1)(c) which was confirmed by the CIT(A). The assessee's quantum appeal had previously been restored to the Assessing Officer (AO) for fresh adjudication by the ITAT.

What were the issues?

Whether a penalty order under Section 271(1)(c) can survive when the underlying assessment order has been set aside and restored for fresh adjudication. Whether principles of natural justice were complied with.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 153A,Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCHES “H”, MUMBAI

Before: SHRI SHAMIM YAHYA (AM) & SHRI RAM LAL NEGI (JM)

For Appellant: Shri Mukesh Chokshi (AR)
For Respondent: Shri Ram Tiwari (DR)
Hearing: 18/05/2018Pronounced: 18/05/2018

O R D E R

PER RAM LAL NEGI, JM

1.

This appeal has been filed by the assessee against order dated 14/11/2014 passed by the Ld. Commissioner of Income Tax (Appeals)-38, Mumbai, for the assessment year 2004-05, whereby the Ld. CIT (A) has dismissed the appeal filed by the assessee against penalty order passed u/s 271 (1) (c) of the Income Tax Act, 1961 (for short ‘the Act’).

2.

The assessee has challenged the impugned order passed by the Ld. CIT

(A) on the following effective grounds:-

1. “The learned Commissioner of Income Tax (Appeals) has erred in law and in facts in confirming the order passed by the Assessing Officer u/s 271 (1)(C) of the Act.

2. The learned Commissioner of Income Tax (Appeals) has erred in law and in facts in confirming the order of 2 Assessment Year: 2004-05 Assessing Officer without complying with the principles of natural justice.

3. The learned Commissioner of Income Tax (Appeals) has erred in law and in facts in confirming penalty u/s 271 (1)(C) of the Act at Rs. 13,20,180/-.

3.

At the outset, the Ld. counsel for the assessee submitted before us that in the present case, the ITAT Mumbai has sent the quantum appeal back to the file of AO for fresh adjudication, therefore the impugned order does not survive. Accordingly, the Ld. counsel further submitted that the impugned order is liable to be set aside.

4.

On the other hand, the Ld. Departmental Representative (DR) did not controvert the fact that the ITAT, Mumbai has restored the quantum appeal to the file of AO for fresh adjudication.

5.

We have perused the material on record in the light of the contention of the appellant/assessee. In the present case, the Ld. CIT (A) confirmed the addition made by the AO vide assessment order dated 08.12.2011 passed u/s 153A read with section 143 (3) of the Act. The assessee challenged the order passed by the Ld. CIT (A) before the ITAT, Mumbai. As pointed out by the Ld. counsel for the assessee, the coordinate Bench has restored the quantum appeal of the assessee, to the file of the AO for passing assessment order afresh vide order dated 07.07.2017.

6.

Since, the quantum appeal has been restored back to the file of AO for passing assessment order afresh, the impugned order passed by the Ld. CIT (A) does not survive. Accordingly, we restore this appeal also to the file of AO for passing order afresh, if needed, after passing assessment 3 Assessment Year: 2004-05

order in terms of order dated 07.07.2017 passed by the coordinate Bench in assessee’s quantum appeal referred above.

In the result, appeal filed by the assessee for assessment year 2004- 2005 is allowed for statistical purposes.

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