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Income Tax Appellate Tribunal, DELHI BENCH - ‘SMC’ NEW DELHI
Before: SHRI BHAVNESH SAINI
This appeal by the assessee has been directed against the order of Ld.CIT(A), 35 New Delhi dated 14th July,2016 for assessment year 2003-04 challenging the levy of penalty u/s 271(1)(c) of the I.T. Act.
Briefly the facts of the case are that the Assessing Officer passed the assessment order u/s 144 / 147 of the I.T. Act on dated 30.11.2010.
The Assessing Officer considered the issue that the assessee had received accommodation entries of Rs. 21,25,000/- from seven persons, details of which are noted in the assessment order. In the absence of Blossom Advertisers Pvt. Ltd. vs ITO explanation of the source of the same amount, it was added against the assessee u/s 69A of the I.T. Act on account of unexplained money received by the assessee. Addition of Rs. 21,35,625/- was accordingly made on which the Assessing Officer initiated the penalty u/s 271(1) (C) of the I.T. Act and vide separate order levied the penalty. Ld. CIT(A) vide impugned order dismissed the appeal of assessee.
I have heard Ld. Representatives of both the parties and perused the material on record.
According to office the appeal is time barred by six days. The assessee in the application for condonation of delay explained that impugned order was received on 9th August, 2016 and appeal was to be filed within 60 days but department was closed due to festivals during 8th October, 2016 to 13th October 2016 Therefore appeal was filed on 14th October, 2016. After considering rival contentions I am satisfied that assessee was prevented by sufficient cause in not filling the appeal within the period of limitation. The nominal delay in filing the appeal is therefore condoned.
Ld. Counsel for assessee at the outset submitted that the addition of Rs. 21,35,625/- which is subject matter of the penalty matter remained in quantum appeal before ITAT Delhi Bench in the case of assessee in / 14 and the Tribunal vide order dated 16.11.2016 restored the matter back to the file of Assessing Officer for reexamination. Copy of the order is placed on record.
Blossom Advertisers Pvt. Ltd. vs ITO
After considering rival submissions I am of the view penalty is not leviable at this stage. Since the quantum addition of Rs. 21,35,625/- has been restored to the file of Assessing Officer for reconsideration therefore nothing survives in favour of the revenue to levy the penalty against the assessee. There is no basis left to levy the penalty. I accordingly set aside the order of the authorities below and cancel the penalty. Appeal of the assessee is allowed. However Assessing Officer is of liberty to initiate penalty proceedings after passing the order of quantum as directed by the Tribunal.
In the result appeal of the assessee is allowed.