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Income Tax Appellate Tribunal, DELHI BENCHES “SMC-2” : DELHI
Before: SHRI BHAVNESH SAINI
For Assessee : Shri Venketesh Chaurasia, Advocate. For Revenue : Shri R.K. Gupta, Sr. D.R. Date of Hearing : 06.07.2020 Date of Pronouncement : 06.07.2020 ORDER
Both the appeals by the Assessee are directed against the different Orders of the Ld. CIT(A)-1, Noida, Dated 28.10.2016, for the A.Y. 2009-2010, challenging the levy of penalty under sections 271(1)(b) and 271(1)(c) of the I.T. Act, 1961.
2 ITA.Nos.4561 & 4562/Del./2019 Shri Angeshwar Kumar Sharma, Dehradun, 2. Briefly the facts of the case are that assessee is an individual and filed return of income on 11.12.2009 declaring income of Rs.9,78,000/-. During the course of assessment proceedings the A.O. noted that assessee has made cash deposit of Rs.17,14,118/- in ICICI Bank and has made credit card payment of Rs.11,19,054/-. The A.O. asked for the source of the same. There was no response from the side of the assessee. The A.O. passed ex-parte assessment order under section 144 of the I.T. Act, 1961, dated 26.12.2011 determining the total income at Rs.38,11,170/- making the above additions. The assessee also did not respond before the Ld. CIT(A). Therefore, appeal of the assessee was also dismissed.
2.1. The A.O. in view of the above levied the penalty against the assessee under section 271(1)(b) and 271(1)(c) of the I.T. Act, 1961 vide separate Orders. The Ld. CIT(A) vide impugned order confirmed the levy of penalty under both the provisions and dismissed the appeal of assessee.
3 ITA.Nos.4561 & 4562/Del./2019 Shri Angeshwar Kumar Sharma, Dehradun, 3. I have heard the Learned Representative of both the parties through video conferencing and perused the findings of the authorities below.
Learned Counsel for the Assessee, at the outset, submitted that assessee preferred appeal against the quantum order of the Ld. CIT(A) before ITAT, SMC-Bench, New Delhi in ITA.No.3111/Del./2017 for the A.Y. 2009- 2010, which have been decided vide order dated 30.12.2019 and the quantum matter have been restored to the file of A.O. Copy of the Order is placed on record.
Since in the aforesaid case the quantum order is set aside to the file of A.O. and the above penalties are arising out of the orders on quantum, therefore, the same would not survive at this stage. Since the matter on quantum is pending before A.O, therefore, the levy of the penalty under section 271(1)(b) and 271(1)(c) of the I.T. Act, levied through the above impugned assessment orders would also not survive. No basis is left for levy of the penalties at this stage. In view of the above, I set aside the 4 ITA.Nos.4561 & 4562/Del./2019 Shri Angeshwar Kumar Sharma, Dehradun, Orders of the authorities below and cancel the penalty under both the provisions. However, the A.O. is at liberty to pass the penalty order afresh, if so advised, in accordance with Law, after passing the assessment order. The appeals of the Assessee are allowed.
In the result, appeals of the Assessee are allowed.
Order pronounced in the open Court.