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Per Anadee Nath Misshra, AM
(A) This appeal by Assessee is filed against the order of learned Commissioner of Income Tax (Appeals)-23, New Delhi [“Ld. CIT”, for short] dated 17.09.2018 for Assessment Year 2008-09. Grounds taken in this appeal of Assessee are as under:
“1. That on the facts of the case and under the law, the Ld. CIT(A) has erred in not quashing the penalty order dt. 30.03.2016 passed by the ld. A.O. u/s 271(l)(c), particularly when the notice dt. 30.03.2016 issued by the ld. A.O. was 'vague' and also because the 'charge' was not specified. The Ld. A.O. had issued a notice dt. 30.03.2013, containing the heading "NOTICE UNDER SECTION 274 READ WITH SECTION 27ID OF THE INCOME TAX ACT, 1961"
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ITA No.- 7429/Del/2018 SNS Projects Pvt. Ltd. 2. That on the facts of the case and under the law, the ld.CIT(A) has erred in not deleting the penalty imposed by the ld. A.O. u/s 271(l)(c) on the amount of addition of Rs. 73,38,000/- representing the unsecured loan from Sh. Sanjay Sharma (one of the directors), while stating that "I am not inclined to interfere in the conclusion made in the quantum assessment that the nature and source of the credit entries which have been stated as (purported loan from Sh. Sanjay Sharma, were not explained)". 3. That on the facts of the case and under the law,the ld.CIT(A) has erred in not deleting the penalty imposed by the ld. A.O. u/s 271(l)(c) on the amount of addition of Rs. 2,75,000/- representing the unsecured loan from Sh. Iqbal Singh Sethi (one of the directors) while stating that "I am not inclined to interfere in the conclusion made in the quantum assessment that the nature and source of the credit entries which have been stated as (purported loan from Sh. Iqbal Singh Sethi, were not explained)". 4. That on the facts of the case and under the law, the ld. CIT(A) has erred in not deleting the penalty imposed by the ld. A.O. u/s 271(l)(c) on the amount of addition of Rs. 6,44,817/- representing the addition made u/s 68, on account of alleged unrecorded expenses.”
(B) Assessment Order under Section 148/143(3) of the Income Tax Act, 1961 (“I.T. Act”, for short) dated 30.03.2013 was passed by the Assessing Officer whereunder the assessed income was Rs. 88,59,589/- as against return of income declaring loss of Rs. 23,827/-. The additions made in the Assessment Order included Rs. 82,38,000/- on account of unsecured loans under Section 68 of I.T. Act and Rs. 6,44,816/- out of expenses from undisclosed sources under Section 68 of the I.T. Act. Thereafter, penalty order under Section 271(1)(c) of I.T. Act dated 30.03.2016 was passed by the Assessing Officer whereunder penalty amounting to Rs. 27,44,790/- was levied at the maximum rate of 300% of tax sought to be evaded, in respect of aforesaid additions totalling Rs. 88,82,816/-. The Assessee’s appeal against aforesaid quantum additions totalling Rs. 88,82,816/- was dismissed by the Ld. CIT(A) vide appellate order dated 23.03.2015 in Appeal No. 77/13-14, as the assessee did not avail the opportunity of
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ITA No.- 7429/Del/2018 SNS Projects Pvt. Ltd. being heard before the Ld. CIT(A). The assessee filed appeal against the aforesaid appellate order dated 23.05.2015 of Ld. CIT(A) in Income Tax Appellate Tribunal (“ITAT”, for short). Vide order dated 27.07.2018 in ITA No. 3463/Del/2015, Co- ordinate Bench of ITAT, Delhi, set aside the matter back to the file of the Ld. CIT(A). In pursuance of this order, a fresh order dated 15.09.2020 has been passed by the Ld. CIT(A) wherein the Ld. CIT(A) quashed the initiation of proceedings under Section 147 of I.T. Act and held that additions made cannot survive any more.
(B.1) The assessee separately filed appeal before the Ld. CIT(A) against the aforesaid order dated 30.03.2016 of the Assessing officer levying penalty under Section 271(1)(c) of I.T. Act. Vide appellate order dated 17.09.2018 , the Ld. CIT(A) partly allowed assessee’s appeal. In effect, the Ld. CIT(A) confirmed the levy of penalty under Section 271(1)(c) of I.T. Act in respect of certain additions and balance penalty was deleted. The present appeal before us is filed against the aforesaid impugned appellate order dated 17.09.2018 of the Ld. CIT(A).
(B.1.1) In the course of appellate proceedings in ITAT, a synopsis was filed by the Ld. Counsel for the assessee. The relevant portion of the synopsis is reproduced as under:
“ITA 7429/Del/2018 AY 2008-09
“1. It is an appeal against the order passed by the learned CIT(A) u/s 250(6) on (Appeal No.143/17-18) w.r.t. the penalty order passed by the learned AO u/s 271(l)(c) on 17.09.2018 30.09.2016. 2. It is respectfully brought on record that in the second round of appeal proceedings (quantum), vide order dt. 15.09.2020 the learned CIT(A) has quashed the initiation of proceedings u/s 147 and also deleted the additions which were made by the learned AO vide assessment order dt.30.03.2013 passed u/s 148/143(3). Page 3 of 9
ITA No.- 7429/Del/2018 SNS Projects Pvt. Ltd.
Since the assessment order dt.30.03.2013, through which the penalty proceedings u/s 271(l)(c) were initiated, does not survive anymore, the penalty u/s 271(l)(c) cannot survive. 4. It may be worth pointing out here that upon visiting the ITAT' Judicial Information Portal, it is observed that no appeal against the order dt. 15.09.2020 passed by the learned CIT(A) has been filed by the Revenue. It is therefore clear that the appeal order dt. 15.09.2020 has attained finality. Even otherwise, the appeal order dt. 15.09.2020 cannot be challenged by the Revenue because of the 'low tax effect' (the total amount of additions/disallowances made by the learned AO was Rs.88,82,816/-). WITHOUT PREJUDICE 5. The assessee had sought quashing of the penalty order on the ground that the notice issued was 'vague' and the 'charge' was not specified. Before the learned CIT(A), the assessee had argued that no notice u/s 271(l)(c) was issued to the assessee, while stating that the only notice which was issued to the assessee on 30.03.2013 was titled as "Notice under section 274 read with section 271D of the Income Tax Act, 1961". The assessee had further argued that even in the said notice, the 'CHARGE' was not specified, as such it was not clear as to whether it was for concealing the particulars of its income or for furnishing inaccurate particulars of such income. However, the learned CIT(A) had arbitrarily rejected the assessee's such arguments, simply by stating that mentioning '271D' on the notice dt. 30.03.2013 was a typographical error and there was no infirmity in the assumption of jurisdiction by the AO. 6. The learned CIT(A) had confirmed levy of the penalty u/s 271(l)(c) with regard to the addition of Rs.73,38,000/- made by the learned AO on a/c of loan from Sh. Sanjay Sharma, while stating " I am not inclined to interfere in the conclusion made in the quantum assessment that nature and source of the credit entries which have been stated as purported loan from Sh. Sanjay Sharma were not explained". Similar remark was given by the learned CIT(A) with regard to the addition of Rs.2,75,000/- made by the learned AO on a/c of loan from Sh. Iqbal Singh Sethi. The learned CIT(A) had confirmed levy of the penalty u/s 271(l)(c) with regard to the addition of Rs.6,44,817/- by stating that it was the onus of the assessee to rebut the finding of fact returned by the AO. In this context, it is noteworthy that at that point of time, the appeal order dt. 15.09.2020 (through which all such addition were deleted) was not in existence. BACKGROUND OF THE CASE Apropos quantum The ld ITO Ward 7(1) New Delhi had passed the assessment order u/s 148 /143(3) on 30.03.2013, thereby making additions and disallowances amounting to Rs.88,82,816/-.
Being aggrieved with the said assessment order, the assessee had filed an appeal before the CIT(A) on 01.05.2013. The ld CIT(A) 8 New Delhi had passed an ex- Page 4 of 9
ITA No.- 7429/Del/2018 SNS Projects Pvt. Ltd. parte order on 23.03.2015 (in Appeal No.77/13-14) thereby dismissing the appeal in limine.
Being aggrieved with the said ex-parte appellate order passed by the ld CIT(A) 8 New Delhi, the assessee had filed an appeal before the Hon'ble ITAT New Delhi on 29.05.2015 (ITA No. 3463/Del/2015). The Hon'ble ITAT Delhi Bench G New Delhi had heard the appeal in ITA No. 3463/Del/2015 (wrt ex-parte appellate order passed in quantum appeal) and vide passed the order on 27.07.2018, thereby restoring back the matter to the file of CIT(A) 8 New Delhi.
Pursuant to the order dt. 27.07.2018 passed by the Hon'ble ITAT Delhi Bench G New Delhi, the Id CIT(A) 8 New Delhi has passed the appellate order on 15.09.2020, quashing the proceedings initiated u/s 147 and simultaneously deleting all the additions/disallowances Apropos Penalty The ld ITO Ward 22(1) New Delhi had passed a penalty order u/s 271(l)(c) on 30.03.2016, thereby levying penalty of Rs. 27,44,790/-. Being aggreieved with the said penalty order, the assessee had filed an appeal on 10.05.2016k. The ld CIT(A) 23 New Delhi had passed an order before the CIT(A) on 17.09.2018 (in Appeal No. 143/17-18) thereby partly allowing the appeal. Being aggrieved with the said appellate order passed by the ld CIT(A) 23 New Delhi, the assessee had filed an appeal before the Hon’ble ITAT New Delhi on 22.11.2018, which is under hearing.”
(C) At the time of hearing before us, the Ld. Counsel for the assessee reiterated the submissions made in the aforesaid synopsis. In particular, he drew our attention to the fact that vide appellate order dated 15.09.2020 of the Ld. CIT(A) the additions which were made by the Assessing Officer vide Assessment Order dated 30.03.2013 passed under Section 148/143(3) of I.T. Act do not survive as of now, in view of the fact that the initiation of proceedings under Section 147 of I.T. Act has been quashed by the Ld. CIT(A) vide aforesaid order dated 15.09.2020. He further submitted that the Assessment Order dated 30.03.2013 which was the foundation for levy of penalty under
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ITA No.- 7429/Del/2018 SNS Projects Pvt. Ltd. Section 271(1)(c) of I.T. Act; does not survive as of now in view of aforesaid order dated 15.09.2020 of the Ld. CIT(A); and as a result the penalty levied under Section 271(1)(c) of I.T. Act also cannot survive. The Ld. Counsel has submitted that no appeal has been filed by Revenue against aforesaid order dated 15.09.2020 of the Ld. CIT(A). He further submitted that the aforesaid appellate order dated 15.09.2020 of the Ld. CIT(A) cannot be appealed against by Revenue because of the tax effect being less than Rs. 50 lakhs having regard to CBDT Circular No. 17/2019 dated 08.08.2019.
(C.1) The Ld. Sr. DR relied on the orders of the Ld. CIT(A) and the Assessing Officer.
(C.2) We have heard both sides. We have perused the materials available on record. We find that there is an error in the synopsis filed by the Ld. Counsel for assessee, wherein it has been stated that the ITO has passed a penalty order under Section 271(1)(c) of I.T. Act on 30.03.2016 thereby levying penalty of Rs. 27,44,790/-. Assessment Order dated 30.03.2013 passed by the Assessing Officer has already been quashed by the Ld. CIT(A) vide aforesaid order dated 15.09.2020 wherein the Ld. CIT(A) also held that other additions cannot survive. The Ld. Sr. DR for Revenue has also not disputed the claim of the Ld. Counsel that no appeal has been filed by Revenue against the aforesaid appellate order dated 15.09.2020 of the Ld. CIT(A). The Ld. Sr. DR for Revenue has also not disputed the claim of the Ld. Counsel for assessee that the Revenue cannot file appeal against the aforesaid appellate order dated 15.09.2020 of Ld. CIT(A) because of the tax effect being less than Rs. 50 lakhs, having regard to CBDT Circular No. 17/2019 dated 08.08.2019. The impugned appellate order dated 17.09.2018 passed by the Ld. CIT(A) wherein penalty levied by the Assessing Officer Page 6 of 9
ITA No.- 7429/Del/2018 SNS Projects Pvt. Ltd. under Section 271(1)(c) of I.T. Act was partly confirmed and partly deleted; was passed at a time when the aforesaid assessment order dated 30.03.2013 passed by the Assessing Officer was still in existence and assessee’s appeal against quantum additions had been dismissed by the Ld. CIT(A) vide aforesaid appellate order dated 23.03.2015 in Appeal no. 77/13-14. However, as of now, the circumstances have changed, due to aforesaid fresh appellate order dated 15.09.2020 passed by Ld. CIT(A) in pursuance of aforesaid order dated 27.07.2018 of Co-ordinate Bench of ITAT, Delhi in ITA No.- 3463/Del/2015. Presently the aforesaid assessment order dated 23.03.2015 and the additions made therein do not survive because of fresh aforesaid appellate order dated 15.09.2020 of the Ld. CIT(A) whereunder the initiation of proceedings under Section 147 of I.T. Act has already been quashed and it has also been held that other additions cannot survive any more. In the changed circumstances, therefore, we find that penalty levied by the Assessing Officer vide aforesaid order dated 30.03.2013 and partly confirmed by the Ld. CIT(A) vide aforesaid order dated 17.09.2018 have no legs to stand at present.
(C.2.1) After hearing both sides, and in view of the foregoing, we are of the view that penalty U/s 271(1)(c) of I.T Act levied by AO has no legs to stand at present, when the corresponding Assessment Order has already been quashed by Ld. CIT(A) vide aforesaid fresh appellate order dated 15.09.2020, holding that the additions made in the assessment order cannot survive. When the assessment order has been quashed, and the additions made therein do not survive; the penalty levied U/s 271(1)(C) of I.T. Act on the corresponding quantum additions also cannot survive. We take support from judicial
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ITA No.- 7429/Del/2018 SNS Projects Pvt. Ltd. precedent in the case of K.C. Builders vs. ACIT 135 Taxman 461 (SC), in which the Hon’ble Apex Court held that where the additions made in the Assessment Order, on the basis of which penalty for concealment was levied, are deleted, by ITAT or otherwise, the penalty cannot stand by itself and is liable to be cancelled. In such a situation, there remains no basis at all at present for levying the penalty U/s 271(1)(c) of I.T. Act , and therefore, in such a case, no such penalty can remain presently. We, therefore, set aside the impugned appellate order dated 17.09.2018 of Ld. CIT(A) and cancel the penalty levied u/s 271(1)(c) of I.T. Act vide order dated 30.03.2016 of the Assessing Officer.
In the result, assessee’s appeal is allowed.
Our order was orally pronounced in the Open Court on 7th October, 2021 after conclusion of hearing. Now, this written order is signed today on 12/10/2021 .
Sd/- Sd/- (AMIT SHUKLA) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 12/10/2021 (Pooja) Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT
ASSISTANT REGISTRAR ITAT NEW DELHI Page 8 of 9
ITA No.- 7429/Del/2018 SNS Projects Pvt. Ltd.
Date of dictation Date on which the typed draft is placed before the dictating Member Date on which the typed draft is placed before the Other Member Date on which the approved draft comes to the Sr. PS/PS Date on which the fair order is placed before the Dictating Member for pronouncement Date on which the fair order comes back to the Sr. PS/PS Date on which the final order is uploaded on the website of ITAT Date on which the file goes to the Bench Clerk Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order
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