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Income Tax Appellate Tribunal, MUMBAI BENCHES “E”, MUMBAI
Before: SHRI D. KARUNAKARA RAO (AM) & SHRI RAM LAL NEGI (JM)
O R D E R PER RAM LAL NEGI, JM This appeal has been preferred by the assessee against order dated 22/09/2015 passed by the Commissioner of Income Tax (Appeals)-9, Mumbai, whereby the Ld. Commissioner confirmed the penalty levied by AO u/s 271 (1) (c) of the Income Tax Act, 1961 (for short ‘the act’).
The assessee has challenged the impugned order on the following effective ground:-
2 Assessment Year: 2003-2004 “On the facts and in the circumstances of the case and in law, the Hon’ble Commissioner of Income Tax (Appeals)-9 erred in upholding the action of the learned Income Tax Officer- 4 (3)(2), Mumbai in levying penalty u/s. 271(1)(c) of the Income Tax Act, 1961, at Rs. 13,00,000. The appellant prays that the penalty levied at Rs. 13, 00,000/- may please be deleted.”
The case was called for hearing, however, none appeared on behalf of the assessee. Perusal of the record revealed that the two notices sent to the assessee have been received back un-served with the remarks that the addressee is not known. In view of the aforesaid fact, we are of the considered opinion that no fruitful purpose would be served in case notice is again issued to the assessee. Accordingly, it was decided to proceed ex-parte against the assessee and decide the case on the basis of material on record after hearing the Ld. Departmental Representative.
At the very outset, the Ld. Departmental Representative submitted that vide order dated 25.4.2012, the Tribunal set aside the issues involved in the quantum appeal for the A.Y. 2003 and ITA No. 3759/Mum/2010 of the A.Y. 2005-06, to the file of AO to decide the same afresh. In the second round of appeal pertaining to the AY 2005-06, the Tribunal has deleted the penalty vide order dated 21.9.2016.
We have perused the material placed on record. We find that the co- ordinate Bench of the ITAT has set aside the quantum appeal pertaining to the AY 2005-06 and the AY under consideration to the file of AO for afresh adjudication holding as under:
“After hearing both the sides and perusing the material available on record and in absence of any distinguishing feature brought on record by the parties, and keeping in view of our findings recorded in paras 11 to 13 of this order, we set aside the issue to the file of the A.D. to decide the 3 Assessment Year: 2003-2004 same afresh in the light of our above observations mentioned therein and according to law after providing reasonable opportunity of being heard to the appellant. The ground taken by the appellant is therefore partly allowed for statistical purpose.” 6. We further notice that the co-ordinate Bench of the Tribunal has allowed the appeal filed against the confirmation of penalty by the CIT (A) in respect of A.Y. 2005-06 and deleted the penalty imposed u/s 271 (1) (c) of the Act, and issues involved in the present appeal is identical to the issues involved in the appeal pertaining to the AY 2005-06. 7. Since, the penalty appeal in respect of A.Y. 2005-06 has been allowed by the co-ordinate Bench and the issues involved in the present appeal are identical, we respectfully following the decision of the co-ordinate Bench, allow the appeal of the assessee and delete the penalty.
In the result, appeal filed by the assessee for the assessment year 2003- 2004 is allowed.