M/S. RADIO TODAY BROADCASTING LTD.,NEW DELHI vs. ACIT, NEW DELHI

This is an appeal by the assessee against the order dated 15.07.2014 of ld. CIT(A)-XVIII, New Delhi 2. The only grievance of the assessee in this appeal relates to the confirmation of penalty of Rs.73,94,750/- 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 the additions on the basis of which penalty was levied by the AO has been deleted by the ITAT and the Hon’ble Jurisdictional High Court confirmed the order dated 09.09.2014 passed 2 Radio Today Broadcasting Ltd. by the ITAT Bench “F”, New Delhi (copies of the said orders were furnished which are placed on record).

In his rival submissions the ld. DR although supported the penalty order passed by the AO but could not controvert the aforesaid contention of the ld. Counsel for the assessee.

We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is noticed that the AO levied the penalty u/s 271(1)(c) of the Act for the reasons that the following additions/disallowances were made: “1. Disallowance of additional depreciation of Rs.1,92,06,254/- 2. Disallowance of depreciation on license fee of Rs.47,25,000/-” 7. It is also noticed that the assessee challenged the above additions made by the AO before the ld. CIT(A) who confirmed the view taken by the AO. Against the order of the ld. CIT(A), the assessee preferred an appeal to the ITAT in wherein vide order dated 09.09.2014, the disallowances made by the AO were deleted. Against the aforesaid order of the ITAT Delhi Bench “F”, New Delhi, the department preferred an appeal to the Hon’ble Jurisdictional High Court wherein vide order dated 09.12.2015 in the case of CIT Vs Radio Today Broadcasting Ltd. reported in 382 ITR 42 (Del.), the aforesaid order 3 Radio Today Broadcasting Ltd. dated 09.09.2014 passed by the ITAT was confirmed. From the aforesaid discussion, now it is clear that the additions/disallowances on the basis of which the AO levied the penalty u/s 271(1)(c) of the Act are not in existence, therefore, the penalty u/s 271(1)(c) of the Act is not leviable.

On a similar issue the Hon’ble Apex Court in the case of K. C. Builders & Others Vs ACIT (2004) 265 ITR 562 held as under: “Where the additions made in the assessment order on the basis of which penalty for concealment is levied, are deleted, there remains no basis at all for levying penalty for concealment and, therefore, in such a case no penalty can survive and the penalty is liable to be cancelled. Ordinarily, penalty cannot stand if the assessment itself is set aside.”

In view of the above, the impugned penalty levied by the AO and sustained by the ld. CIT(A) is deleted. 10. In the result, the appeal of the assessee is allowed. (Order Pronounced in the Court on 21/06/2017)