DCIT, NEW DELHI vs. VIJAY KUMAR KATARIA, NEW DELHI

The common issue is involved in all these appeals which relates to the deletion of penalty levied by the AO u/s to 5047 & 5705/Del/2013 2 Vijay Kumar Kataria 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 all the additions on the basis of which the impugned penalty u/s 271(1)(c) of the Act was levied by the AO have been deleted by the ITAT Delhi Benches ‘H’, New Delhi vide order dated 17.11.2015 in to 5477/Del/2010 for the assessment years 2002-03 to 2007-08 (copy of the said order was furnished which is placed on record).

In his rival submissions the ld. CIT DR although supported the orders of 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 perused the material available on the record. In the present case, it is an admitted fact that the additions on the basis of which impugned penalties u/s 271(1)(c) of the Act were levied by the AO, have been deleted by the ITAT Delhi Benches ‘H’, New Delhi in to 5477/Del/2010 for the assessment years 2002-03 to 2007-08 vide order dated 17.11.2015. Therefore, the very basis for levying the penalty u/s 271(1)(c) of the act is not inexistence. On a similar issue ITA Nos. 5044 to 5047 & 5705/Del/2013 3 Vijay Kumar Kataria the Hon’ble Supreme Court in the case of K.C Builders Vs ACIT reported at 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.

We, therefore, by keeping in view the ratio laid down by the Hon’ble Supreme Court in the aforesaid referred to case, do not see any infirmity in the order of the ld. CIT(A) who rightly deleted the penalty levied by the AO u/s 271(1)(c) of the Act. Accordingly, we do not see merit in these appeals of the department.

In the result, the appeals of the department are dismissed. (Order Pronounced in the Court on 06/12/2016)