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Income Tax Appellate Tribunal, DELHI BENCH ‘F’, NEW DELHI
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘F’, NEW DELHI Before Sh. N. K. Saini, AM And Smt. Beena Pillai, JM Asstt. Year : 2007-08 Sh. Rajiv Jain, Vs Asstt. Commissioner of Income I-42, Ashok Vihar, Phase-I, Tax, Central Circle-1, New Dehi-110052 New Delhi-110055 (APPELLANT) (RESPONDENT) PAN No. AAJPJ0074G Assessee by : Ms. Sumangla Saxena, Adv. Revenue by : Sh. F. R. Meena, Sr. DR Date of Hearing : 19.09.2016 Date of Pronouncement : 20.09.2016 ORDER Per N. K. Saini, AM:
This is an appeal by the assessee against the order dated 26.08.2013 of ld. CIT(A)-III, New Delhi.
The only grievance of the assessee in this appeal relates to the confirmation of penalty 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 addition on the basis of which the penalty u/s 271(1)(c) of the Act was Rajiv Jain levied by the AO has been deleted by the ITAT in for the assessment year 2007-08 vide order dated 25.07.2014 (copy of the said order was furnished which is placed on record). We may mention that the Hon’ble Delhi High Court vide its order dated 12.10.2105 in ITA No. 351/2015 has confirmed the order of the ITAT. The ld. DR could not controvert the aforesaid contention of the ld. Counsel for the assessee.
After considering the submissions of both the parties and material on record, it is noticed that the AO framed the assessment u/s 143(3) of the Act on 24.12.2009 by making an addition of Rs.65,00,000/- u/s 68 of the and also initiated the penalty proceedings u/s 271(1)(c) of the Act and levied the penalty of Rs.21,87,900/- which was confirmed by the ld. CIT(A). Now the said addition made by the AO and sustained by the ld. CIT(A) has been deleted by the ITAT vide aforesaid referred to order dated 25.07.2014 which has also been upheld by the Hon’ble High Court as referred to above. Therefore, the addition on the basis of which the impugned penalty u/s 271(1)(c) of the Act was levied is now not in existence, therefore, the said penalty u/s 271(1)(c) of the Act does not survive. On a similar issue the Hon’ble
Rajiv Jain Supreme Court in the case of K.C Builders Vs ACIT 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.” 4. In view of the above, the penalty levied by the AO and sustained by the ld. CIT(A) is deleted.
In the result, appeal of the assessee is allowed. (Order Pronounced in the Court on 20/09/2016)