ALEMBIC SECURITIES P.LTD,MUMBAI vs. DCIT CC 46, MUMBAI

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ITA 679/MUM/2015Status: DisposedITAT Mumbai21 October 2016AY 2006-074 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that since the assessment orders were set aside and restored to the AO, the penalty orders should also be set aside. The AO was given liberty to initiate fresh penalty proceedings after passing a new assessment order.

What were the facts?

The appeals were filed against penalty orders under Section 271(1)(c) for different assessment years. The core issue was the levy of penalty. The Tribunal had previously set aside the assessment orders in quantum appeals and restored the matters to the AO for redetermination.

What were the issues?

Whether penalty under Section 271(1)(c) can survive when the underlying assessment order has been set aside and restored to the Assessing Officer.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCHES “D”, MUMBAI

Before: Shri Sanjay Garg, & Shri Ashwani Taneja

For Appellant: Shri Mukesh Choksi (AR), Shri B.S. Bist (Sr. DR)
Hearing: 21/10/2016

आदेश / O R D E R Per Bench: These Appeals pertain to two assessees involving identical issue, therefore these were heard together and disposed of by this common order.

2.

During the course of hearing, arguments were made by Shri Mukesh Choksi on behalf of the Assessee and by Shri B.S. Bist, Departmental Representative (Sr. DR) on behalf of the Revenue.

3.

These appeals have been filed against the common order of Ld. CIT(A) dated 14.11.2014 passed against the penalty order u/s 271(1)(c) for different years. Identical issue raised in all the appeals is with regard to levy of penalty u/s 271(1)(c). During the course of hearing Mr. Mukesh Choksi, Director of these companies appeared and submitted that in the quantum appeal, the Tribunal has set aside the assessment order of Ld. CIT(A) and restored the matter back to the file of the AO to redetermine the total income as per direction of the Tribunal after giving original opportunity of hearing to the assessee. Thus, as on date, order of the AO no more survives and therefore, penalty order should also go. 3.1. Per contra, Ld. DR submitted that penalty orders should also be sent back to the file of the AO. 3.2. We have gone through the orders passed by the Tribunal dated 30.09.2016 in to 245/Mum/2013 in the Alembic Securities P. Ltd. 3 case of M/s. Alembic Securities Pvt. Ltd. v. DCIT and order dated 09.09.2016 in & 310/Mum/2013 in the case of Kanak Stock Brokers Pvt. Ltd. In both these orders, the Tribunal has set aside the order of the Ld. CIT(A) passed in the quantum proceedings and restored the matter back to the file of AO to re-determine the total income as per Tribunal’s directions contained in its orders. Under these circumstances, impugned penalty orders are also set aside. The AO is at his liberty to initiate the penalty proceedings after passing fresh assessment order as per law and facts of the case.

4.

In the result, these four appeals may be treated as allowed for statistical purposes.

Order was pronounced in the open court at the conclusion of hearing.

1.

Sd/- Sd/- (Sanjay Garg ) (Ashwani Taneja) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER मुंबई Mumbai; �दनांक Dated : 21/10/2016 ctàxÄ? P.S/.�न.स. आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. आयकर आयु�त(अपील) / The CIT, Mumbai. 4. आयकर आयु�त / CIT(A)- , Mumbai 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy//

Alembic Securities P. Ltd. 4

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