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Income Tax Appellate Tribunal, “H” BENCH, MUMBAI
Before: SHRI MAHAVIR SINGH, JM & SHRI RAJESH KUMAR, AM
आदेश / O R D E R PER RAJESH KUMAR, A. M: This is an appeal filed by the assessee and it is directed against the order of the ld.CIT(A), Mumbai, dated 31.10.2014 for the assessment year 2008-09.
Only ground raised
by the assessee in this appeal pertains to confirmation of penalty of Rs.10,47,000/- by the ld.CIT(A) as imposed by the AO under section 271(1)(c) of the Income Tax Act, 1961.
3. The ld. AR, at the outset, submitted before us that the quantum appeal for the instant year on the basis of which the penalty has been 2 7479/Mum/2014 imposed by the AO and which is a subject matter of the present appeal has been deleted by the decision of the co-ordinate Bench of the Tribunal in assessee’s own case in dated 9.9.2016, therefore, the penalty have no legs to stand and be deleted.
The ld.DR very fairly agreed to the contentions of the ld.AR.
After hearing both the parties and on perusal of the record including the orders of authorities below and case law relied upon by the ld.AR, we find that in quantum appeal of the assessee (supra), the quantum has been set aside to the file of the AO for re-determining the total income of the assessee as per direction given by the Tribunal. We are therefore of the considered view that the penalty has no legs to stand when the issue of quantum addition has been restored back to the AO for redetermination by the Tribunal in assessee’s own case (supra) while deciding the issue the Tribunal vide para 9.3 has observed and held as under : “9.3 In conclusion, we, therefore, set-aside the order of the CIT(A) and restore the matter back to the file of Assessing Officer to redetermine the total income as per aforesaid directions. Needless to mention, the Assessing Officer shall allow the assessee a reasonable opportunity of being heard before recomputing the income as per law.”
We, therefore, respectfully following the view taken by the co- ordinate Bench of the Tribunal in assessee’s own case (supra), set aside the order of the ld. CIT(A) and direct the AO to delete the penalty and also direct ther AO to decide the issue of penalty u/s 271(1)(c) of the Act in the set aside proceedings in terms of decision of the Tribunal in ITA
3 7479/Mum/2014 No.ITA No.7480/Mum/2014 (AY-2009-10) dated 9.9.2016 in assessee’s own case. 7. In view of the above findings of the Tribunal, we direct the AO to delete the penalty. 8. In the result the appeal of the assessee stands allowed.