DCIT CEN CIR 3(3) CEN RG 3, MUMBAI vs. NARENDRAPAL GUPTA, MUMBAI

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ITA 7222/MUM/2016Status: DisposedITAT Mumbai10 November 2017AY 2010-113 pages

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

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that since the addition on which the penalty was levied was subsequently deleted by the ITAT, the penalty itself does not survive. Therefore, the deletion of penalty by the CIT(A) was upheld.

What were the facts?

The assessee offered lease rent for furniture as 'Income from House Property', but the AO assessed it as 'Income from Other Sources'. The CIT(A) confirmed this addition. Subsequently, a penalty under Section 271(1)(c) was levied.

What were the issues?

Whether penalty under Section 271(1)(c) can be sustained when the underlying addition has been deleted by a higher appellate authority.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “F” BENCH, MUMBAI

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

For Appellant: Ms. Pooja Swarup

सुनवाई क� तार�ख / : 09.11.2017 Date of Hearing घोषणा क� तार�ख / : 10.11.2017 Date of Pronouncement आदेश / O R D E R Per Shamim Yahya, A. M.: This Appeal by the Revenue directed against the Order by the Commissioner of Income Tax (Appeals)-51, Mumbai (‘CIT(A)’ for short) dated 29.09.2016 and pertains to the assessment year (A.Y.) 2010-11. The ground of appeal read as under: On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in deleting the penalty of Rs.46,22,215/- levied u/s. 271(1)(c) of the IT

(A.Y. 2010-11) Dy. CIT vs. Shri Narendrapal Gupta Act on the ground that quantum addition has been deleted without appreciating that department has not accepted the said order and the matter is pending.

2.

Brief facts of the case are that the assessee had let out a building to M/s. East India Hotels Ltd. The assessee had entered into two separate lease agreements viz., one agreement for lease of premises and another agreement for leasing of furniture and received lease rent of Rs.1,35,98,750/- each under those agreements. Income from both the leases was offered under the head “Income from House Property”. However, while passing the assessment order u/s. 143(3), the Assessing Officer assessed the income of Rs.1.35 crores received for leasing of furniture as “Income from Other Sources”. On appeal, the ld. CIT(A) has confirmed the addition of the Assessing Officer. Subsequently, penalty u/s. 271(1)(c) amounting to Rs.46,22,215/- was levied vide order dated 27.03.2015.

3.

We have heard both the counsels and perused the material on records. We find that the ld. CIT(A) has deleted the penalty in this regard by holding that the addition in this case which was confirmed by the ld. CIT(A) was deleted by the tribunal vide order dated 03.02.2016 in ITA No. 3269/Mum/2013. The ld. CIT(A) has given a finding that he has gone through the ITAT order and since the addition on which the penalty levied is passed does not survive, the penalty also does not survive.

4.

Since the addition based upon which this penalty has been levied has been deleted by the ITAT, the ld. CIT(A) is correct in holding that this penalty does not (A.Y. 2010-11) Dy. CIT vs. Shri Narendrapal Gupta survive. Accordingly, we do not find any infirmity in the order of the ld. CIT(A). Accordingly, we uphold the same.

5.

In the result, the appeal filed by the Revenue stands dismissed. प�रणामतः राज�व क� अपील खा�रज क� जाती है । Order pronounced in the open court on 10.11.2017 Sd/- Sd/- (Amarjit Singh) (Shamim Yahya) �या�यक सद�य / Judicial Member लेखा सद�य / Accountant Member मुंबई Mumbai; �दनांक Dated : 10.11.2017 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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