INCOME TAX OFFICER, WARD-6(2), JAIPUR, JAIPUR vs. BIRMA DEVI, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,” A”-Bench” JAIPUR Jh jkBkSM+ deys'k t;UrHkkbZ] ys[kk lnL; ,o aJh ujsUnz dqekj] U;kf;d lnL; ds le{k BEFORE: SHRI RATHOD KAMLESH JAYANTBHAI, AM & SHRI NARINDER KUMAR, JM vk;dj vihy la-@ITA. No. 849/JPR/2024 fu/kZkj.k o"kZ@Assessment Year : 2013-14 Income Tax Officer cuke Birma Devi Ward-6(2), Vs. 136, Surya Nagar, Tonk Road, Jaipur. Durgapura, Jaipur. LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: BKCPD2758M vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assessee by : Shri S.L. Poddar, Adv. jktLo dh vksjls@Revenue by: Shri Anil Bhardwaj (CIT) lquokbZ dh rkjh[k@Date of Hearing : 23/07/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 24/07/2024 vkns'k@ORDER PER: NARINDER KUMAR, JUDICIAL MEMBER

Department- the Revenue is feeling aggrieved by order dated 27.04.2024 passed by Learned CIT(A), NFAC, Delhi, u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as the “Act”). 2. Vide impugned order, Learned CIT(A) has set aside the order of penalty passed by the Assessing Officer u/s 271(1)(c) of the Act, while observing that the Appellate Tribunal upheld the claim of the assessee-

2 ITA No. 849/JPR/2024 ITO vs. Birma Devi respondent as regards deductions claimed u/s 54B of the Act, and setting aside of the quantum addition. 3. Arguments heard. File perused. 4. As is available from the penalty order dated 29.03.2019, relating to assessment year 2013-14, the Assessing Officer levied penalty of Rs. 1,11,10,900/-u/s 271(1)(c) of the Act, having arrived at the conclusion that the assessee furnished inaccurate particulars of income, without any reasonable cause. 5. As is available from the order of penalty, the assessee had challenged the assessment framed u/s 143(3) of the Act, by filing the appeal before Learned CIT(A)-2, Jaipur. That appeal was partly allowed by the Learned CIT(A) in view of the mistake made by the Assessing Officer in calculations. 6. It was thereafter that the Assessing Officer issued show cause notice to the assessee on 22.02.2019. The assessee did not respond the said show cause notice. Ultimately, penalty came to be levied, as noticed above. 7. Feeling aggrieved by the order of penalty, the assessee preferred appeal before Learned CIT(A), NFAC. As noticed above, said appeal was allowed.

3 ITA No. 849/JPR/2024 ITO vs. Birma Devi 8. Ld. DR for the appellant has submitted that vide order dated 12.04.2019 passed by this Appellate Tribunal in ITA No. 678/JP/2018 i.e. the appeal of the assessee, was allowed as regards the quantum addition, but said order has been challenged by the department before the Hon’ble High Court. On merits, Ld. DR stands by the observations made by the Assessing Officer in the order of penalty, and has urged for allowing of this appeal. In the alternative, Ld. DR for the appellant has submitted that the appeal be kept in abeyance, to be taken up after disposal of the appeal filed by the department before the Hon’ble High Court. 9. As regards pendency of the appeal before the Hon’ble High Court against the order dated 12.04.2019 passed by this Appellate Tribunal setting aside the quantum addition, it has not been submitted on behalf of the department-appellant that there is any order of stay of proceedings in this appeal. Therefore, there is no merit in the contention raised on behalf of the assessee-appellant that this appeal may be kept in abeyance. Even otherwise, on dismissal of an appeal by the Hon’ble High Court, the authorities below are bound to give effect to the decision by the Hon’ble High Court as per directions contained therein.

4 ITA No. 849/JPR/2024 ITO vs. Birma Devi 10. On the other hand, Ld. AR for the assessee has referred to the provisions of section 275(IA) of the Act and urged that this appeal filed by the department is not maintainable. Ld. DR for the appellant has submitted that provisions of section 275(1A) of the Act do not apply to the given situation, and as such, there is no merit in the contention raised on behalf of the assessee. 11. Sub-section (1A) of Section 275 of the Act reads as under:- “[(1-A) In a case where the relevant assessment or other order is the subject matter of an appeal to the Commissioner (Appeals) under section 246 or section 246-A or an appeal to the Appellate Tribunal under section 253 or an appeal to the High Court under section 260-A or an appeal to the Supreme Court under section 261 or revision under section 263 or section 264 and an order imposing or enhancing or reducing or cancelling penalty or dropping the proceedings for the imposition of penalty is passed before the order of the Commissioner (Appeals) or the Appellate Tribunal or the High Court or the Supreme Court is received by the Chief Commissioner or the Commissioner or the order of revision under section 263 or section 264 is passed, an order imposing or enhancing or reducing or cancelling penalty or dropping the proceedings for the imposition of penalty may be passed on the basis of assessment as revised by giving effect to such order of the Commissioner (Appeals) or, the Appellate Tribunal or the High Court, or the Supreme Court or order of revision under section 263 or section 264:” Having regard to the provisions of sub-section (1A) of section 275 of the Act, we find merit in the contention raised on behalf of the appellant that said provisions do not apply to the given situation, and it cannot be said the present appeal filed by the department is not maintainable.

5 ITA No. 849/JPR/2024 ITO vs. Birma Devi 12. Admittedly, the quantum addition, on being challenged by the assessee before this Appellate Tribunal has been set aside vide order dated 12.04.2019, while allowing in ITA No. 678/JP/2018 filed by the assessee and thereby allowing deductions claimed u/s 54B of the Act. Ld. AR for the respondent-assessee has submitted copy of order dated 12.04.2019. Its copy was also submitted before Learned CIT(A) and taken into consideration. 13. When the claim of the assessee as regards deductions u/s 54B of the Act has been allowed by this Appellate Tribunal vide judgment dated 12.04.2019 i.e. subsequent to passing of the order of penalty i.e. dated 29.03.2019, there is merit in the contention raised on behalf of the assessee that the penalty order has been rightly set aside by Learned CIT(A). Result 14. As a result, this appeal filed by the department-Revenue is hereby dismissed. Order pronounced in the open court on 24/07/2024. Sd/- Sd/- jkBkSM+ deys'k t;UrHkkbZ ½ ¼ujsUnz dqekj½ (RATHOD KAMLESH JAYANTBHAI) (NARINDER KUMAR) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member

6 ITA No. 849/JPR/2024 ITO vs. Birma Devi Tk;iqj@Jaipur fnukad@Dated:- 24/07/2024 *Santosh आदेश की प्रतिलिपिअग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू The Appellant- ITO, Ward-6(2), Jaipur. 1. 2. izR;FkhZ@ The Respondent- Birma Devi, Jaipur. 3. vk;djvk;qDr@ The ld CIT 4. विभागीय प्रतिनिधि] आयकरअपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZQkbZy@ Guard File ITA No. 849/JPR/2024) vkns'kkuqlkj@ By order,

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