M/S. NOOR SALEEM RANA,MUZAFFARNAGAR vs. ITO, MUZAFFARNAGAR

These are the appeals filed by the assessee against the order of the ld CIT(A)- Muzaffarnagar dated 29.12.2014 for the AY 2002-03 and 2004-05, wherein penalty u/s 271(1)(c) levied for AY 2002-03 of Rs. 152999/- and for AY 2004-05 of Rs. 75000/- was confirmed.

The assessee has raised though several grounds of appeal however, main issue involved is confirmation of penalty by ld CIT(A).

The brief facts of the case are that the case of the assessee was reopened for AY 2002-03 by issue of notice u/s 148 of the Income Tax Act. The ld AO in reopened proceedings passed assessment order u/s 147 read with section 144 of the Act and made an addition of Rs. 5 lakhs on account of accommodation entry. Subsequently, the reopening of the assessment and the quantum were challenged before the ld CIT(A) who confirmed it by order dated 28.08.2012. subsequently, the assessee challenged the order of the CIT(A) before the coordinate bench who vide order dated 26.04.2017 held that reopening merely based on the information from the investigation Wing was not valid and reassessment framed was held to be invalid and quashed. Similar is the issue for AY 2004-05, wherein, the addition was for Rs. 250000/-. For that year, also the coordinate bench quashed the reopening by the same order.

Meanwhile, the penalty u/s 271(1)(c) of the Act of Rs. 152999/- for AY 2002-03 and Rs. 75000/- for AY 2004-05 was levied by the Assessing Officer which were confirmed by the ld CIT(A) and therefore, these appeals.

The ld Authorised Representative submitted the copy of the order of the coordinate bench in ITA No. 5971 and 5972/Del/2012 for AY 2002-03 and 2004-05, wherein, the reopening was quashed. He therefore, submitted that now penalty orders do not survive.

The ld DR perused the orders of the coordinate bench but relied on the orders of the lower authorities.

We have carefully considered the rival contentions and also perused the orders of the lower authorities as well as the order of the coordinate bench quashing the reopening proceedings for both the years. In view of the order of the coordinate bench where the original additions itself based on which the penalty is levied have not survived, there is no question of penalty u/s 271(1)(c) of the Act on it. In view of this, we reverse the finding of the ld CIT(A) and direct the ld AO to delete the penalty u/s 271(1)(c) of the Act for both the years.

In the result, appeals of the assessee for both the years are allowed. Order pronounced in the open court on 09/06/2017. - - (PRASHANT MAHARISHI) (VICE PRESIDENT) Dated: 08/06/2017 A K Keot