DUM DUM CONSTRUCTION PVT. LTD.,KOLKATA vs. ITO, WD-12(2), KOLKATA, KOLKATA

I have heard the arguments of both the sides and also perused the relevant material available on record. It is observed that the impugned penalty under section 271(1)(c) was imposed by the Assessing Officer in respect of addition of Rs.57,46,000/- made to the total income of the assessee on account of advances received from customers by treating the same as unexplained cash credits. As submitted by the ld. counsel for the assessee, the said addition was disputed by the assessee in the quantum proceedings and vide its order dated March 2, 2015 passed in ITA No. ./2015 Assessment year: 2008-2009 Page 2 of 2 406/KOL2012, the Tribunal has restored the issue relating to the said addition to the file of the Assessing Officer for deciding the same afresh after providing proper and sufficient opportunity to the assessee of being heard. The very basis of the imposition of the impugned penalty thus no more survives and the impugned order of the ld. CIT(Appeals) confirming the penalty imposed by the Assessing Officer under section 271(1)(c) is liable to be set aside as rightly contended by the ld. counsel for the assessee. We, accordingly, set aside the impugned order of the ld. CIT(Appeals) confirming the penalty imposed by the Assessing Officer under section 271(1)(c) with a liberty to the Assessing Officer to initiate the penalty proceedings under section 271(1)(c) afresh depending on the outcome of the set aside proceedings in accordance with law.

In the result, the appeal of the assessee is treated as allowed. Order pronounced in the open Court on December 21, 2016. Sd/- (P.M. Jagtap) Accountant Member Kolkata, the 21st day of December, 2016 Copies to : (1) Dum Dum Construction Pvt. Limited, 258, M.C. Garden Road, Block B, 3 rd Floor, Madhubani Apartment, Kolkata-700 030 (2) Income Tax Officer, Ward-12(2), Kolkata, Aayakar Bhawan, P-7, Chowringhee Square, Kolkata-700 069