VIMAL KUMAR RATHI,MUMBAI vs. ITO 21(2)(4), MUMBAI

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ITA 6308/MUM/2016Status: DisposedITAT Mumbai22 March 2018AY 2002-033 pages

In favour of the Revenue: the assessee's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal noted that the CIT(A) had indeed deleted the penalty, making the assessee's appeal infructuous. The appeal was dismissed as the operative part of the CIT(A)'s order was favorable to the assessee.

What were the facts?

The assessee appealed against a penalty order under Section 271(1)(c). The CIT(A) had deleted the penalty, finding that the original addition was already deleted by the ITAT. However, the CIT(A)'s order concluded with 'the appeal is dismissed'.

What were the issues?

Whether a penalty order becomes infructuous if the underlying addition is deleted by a higher authority. The correctness of the concluding remark in the CIT(A)'s order.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, “F ” BENCH, MUMBAI

Before: SHRI SHAMIM YAHYA, AM & SHRI PAWAN SINGH, JM

For Appellant: Shri G. P. Mehta, Ms. Pooja Swaroop
For Respondent: Ms. Pooja Swaroop

O R D E R Per Shamim Yahya, A. M.: This appeal by the assessee is directed against the order by the Commissioner of Income Tax (Appeals) dated 17.4.2014 and pertains to the assessment year 2002- 03.

2.

The grounds of appeal

read as under:

01. The orders passed by the learned lower authorities are bad in law and bad in facts.

1.

02. The learned CIT (A) has grossly erred in holding that appeal filed by the appellant against the penalty order passed by the Assessing Officer u/s 271 (1) (c )

Shri Vimal Kumar Rathi of the I. T. Act, 1961, was rendered infructuous in view of the appeal filed by the appellant against the assessment order passed having been allowed by the Hon'ble Incoem Tax Appellate Tribunal, inasmuch as, there is no provision in the I. T. Act, 1961 in operation, by virtue of which penalty order u/s. 271 (1) {c ) of the Act automatically becomes in operative or redundant on deletion of additions made to the returned income.

3. The learned CIT (A) has grossly erred in making a concluding remark in the impugned appellate order, "In the result the appeal is dismissed" even though in substance and effect, the learned CIT (A) intended to allow the appeal.

4.

Having regard to the facts of the case, provisions of law and judicial propositions, the concluding remark in impugned order may please be directed to be modified / corrected so as to bring it in conformity with the reasoning and substance of the decision.

3.

We have heard both the counsel and perused the records. We find that actually the ld. Commissioner of Income Tax (Appeals) has deleted the penalty upon finding that the addition has been already deleted by the ITAT in the quantum appeal. However, the assessee is only aggrieved by the last line of the ld. Commissioner of Income Tax (Appeals)’s order wherein it has been mentioned that the appeal is dismissed. We may gainfully refer to the operative part of the ld. Commissioner of Income Tax (Appeals) order as under:

4. It is evident from the order of ITAT that the honourable ITAT has decided the appeal in favour of the assessee and deleted the entire addition made by the assessing officer. In the case of K.C.Builders vs. ACIT reported at 255 ITR 562/135 Taxman 461 (SC), the Hon'bble Supreme Court has held that if the quantum addition based on which the penalty is levied, is deleted, penalty u/s 271(1)(c) on the additions/disallowances made does not sustain. In view of the same, since the quantum addition made in the assessment order is deleted by the Hon'ble ITAT vide Order No. dated 16/10/2015, the penalty levied thereon does not survive. On account of these facts, the penalty levied is cancelled. The ground raised become infructuous.

5.

In the result, the appeal is dismissed.

Shri Vimal Kumar Rathi 4. From the above, it is evident that the ld. Commissioner of Income Tax (Appeals) has actually deleted the penalty and the Revenue is not in appeal before us. Hence, since the ld. Commissioner of Income Tax (Appeals) has in effect deleted the penalty, this appeal filed by the assessee is infructuous and hence the same is dismissed as such.

In the result, this appeal by the assessee stands dismissed.

5. Order pronounced in the open court on 22.03.2018 Sd/- Sd/- (Pawan Singh) (Shamim Yahya) �या�यक सद�य / Judicial Member लेखा सद�य / Accountant Member मुंबई Mumbai; �दनांक Dated : 22.03.2018 व.�न.स./Roshani, Sr. PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : अपीलाथ� / The Appellant 1. ��यथ� / The Respondent 2. आयकर आयु�त(अपील) / The CIT(A) 3. आयकर आयु�त / CIT - concerned 4. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 5. गाड� फाईल / Guard File 6. आदेशानुसार/ BY ORDER,

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