MR. ANIL ANANDA POKHARNIKAR ,PUNE vs. THE INCOME TAX OFFICER, WARD 10(3) , PUNE

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ITA 356/PUN/2024Status: DisposedITAT Pune28 June 2024AY 2011-12Bench: SHRI R.K. PANDA (Vice President), MS. ASTHA CHANDRA (Judicial Member)3 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal set aside the CIT(A)'s order on the quantum appeal and consequently set aside the penalty order. The matter was restored to the CIT(A)'s file for a fresh decision.

What were the facts?

The assessee appealed against a penalty order confirmed by the CIT(A) based on an assessment order that was later set aside. The appeal was filed with a delay, which was condoned.

What were the issues?

The primary issue was the validity of the penalty order when the underlying assessment order was set aside. The Tribunal also considered the premature adjudication of the penalty appeal before the quantum appeal.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 144,Section 147,Section 263,Section 69

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “A” BENCH, PUNE

Before: SHRI R.K. PANDA & MS. ASTHA CHANDRA

For Appellant: Shri Prashant Munot
For Respondent: Shri Pawan Bharati

आयकर अपील सं. / Assessment Year : 2011-12 Mr. Anil Ananda Pokharnikar, The Income Tax Officer, S. No. 135, Patanjali Chikitsalya- Ward – 10(3), Akurdi, Pune Gurukrupa Agency, Near Sai Vs. Mandir, Mohan Nagar, Chinchwad, Pune-411019 PAN : AANPP9295K अपीलार्थी / Appellant प्रत्यर्थी / Respondent Assessee by : Shri Prashant Munot Department by : Shri Pawan Bharati Date of hearing : 20-06-2024 Date of 28-06-2024 Pronouncement : आदेश / ORDER

PER ASTHA CHANDRA, JM :

1.

The appeal filed by the assessee is directed against the order dated 10.10.2023 of the Ld. Commissioner of Income Tax (Appeals)/NFAC, Delhi [“CIT(A)”] whereby he confirmed the penalty of Rs.19,22,608/- levied by the Ld. Assessing Officer (“AO”) u/s 271(1)(c) of the Income Tax Act, 1961 (the “Act”) pertaining to Assessment Year (“AY”) 2011-12.

2.

The assessee has taken the following grounds of appeal:- “A) Validity of Penalty Order based on a non-est Assessment Order, which no longer survives-in-law :

1. On the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) ["CIT(Appeals)"] erred in confirming the Order levying Penalty u/s. 271(1)(c) of the Act based on an non-est Assessment order passed u/s. 144 read with sec. 147 of the Act, which was already set aside by the learned Principal Commissioner of Income Tax, Pune-3, exercising Revisionary powers under section 263 of the Income Tax Act, 1961 [in short "the Act"] vide Revision Order dated 31.03.2021. B) Validity of Penalty Order confirmed without adjudication and disposal of Quantum Appeal pending against the Assessment Order:

2. On the facts and circumstances of the case and in law, the learned CIT (Appeals) erred in confirming the Order levying Penalty u/s. 271(1)(c) of the Act, failing to appreciate that, adjudication on Penalty Appeal before adjudication and disposal of Quantum Appeal pending against the Assessment Order was pre-mature, void ab-initio, invalid and bad in law. C) Validity of Penalty Order in furtherance of an Assessment Order which in-itself was void ab-initio, invalid and bad-in-law : 3. On the facts and circumstances of the case and in law, the learned CIT (Appeals) erred in confirming the Order levying Penalty u/s. 271(1)(c) of the Act, failing to appreciate that, reopening of the Assessment proceedings itself, wherein the impugned penalty proceedings were initiated, were invalid, void ab-initio and bad in law.

4. On the facts and circumstances of the case and in law, the learned CIT (Appeals) erred in confirming the Order levying Penalty u/s. 271(1)(c) of the Act, failing to appreciate that, the impugned assessment order based on which the impugned Order levying Penalty was passed by the learned Assessing, was in-itself illegal, invalid, void ab-initio and bad in law. D) On Merits : Penalty levied was incorrect and bad in law : Without prejudice to other grounds herein, 5. The learned CIT (Appeals) erred both on facts and in law, in confirming the Order levying Penalty u/s. 271(1)(c) of the Act, failing to appreciate that, the impugned additions made in the assessment order invoking section 69 of the Act, for which impugned Penalty was levied u/s. 271(1)(c) of the Act, in-itself was without satisfying the pre- conditions therein, was illegal, invalid, void ab-initio and bad in law.

6.

The learned CIT (Appeals) erred both on facts and in law, in confirming the Order levying Penalty of Rs.19,22,608/- u/s. 271(1)(c) of the Act, E) Non Speaking, arbitrary & mechanical Order and Violation of Pronciples of Natural Justice : 7. The learned CIT (Appeals) erred both on facts and in law, in confirming an mechanical, arbitrary, adverse, non-speaking Penalty Order passed by the learned Assessing Officer without appreciating the facts and circumstances of the case and the correct legal position in its proper perspective, and without satisfaction of the pre-conditions in section 271(1)(c) of the Act.

8.

The learned CIT (Appeals) erred both on facts and in law, in passing an ex-parte adverse appeal order confirming the Penalty levied by the learned Assessing Officer u/s. 271(1)(c) of the Act, failing to appreciate the facts and circumstances of the case and the correct legal position in its proper perspective, and without adjudicating on the grounds of appeal

and submissions put forth by the appellant and in violation of the principles of natural justice, thereby rendering the order void ab-inito, perverse and band in law. F) Common Legal Ground :

9. IN any view of the matter and in any case, the initiation of the penalty proceedings, the penalty proceedings conducted in furtherance thereof, the impugned order levying penalty, and the Appeal order passed by the learned CIT (Appeals) confirming the impugned penalty order, all were contrary to the law, facts and circumstances of the case and were otherwise bad in law. The appellant craves leave to add, amend, alter, vary and/or withdraw any or all the above grounds of appeal and/ or to adduce and rely upon such further evidence/additional evidence and/ or documents as may be required at any time before and during the time of hearing.”

3.

The appeal which was due on 09.12.2023 has been filed on 22.02.2024. An application for condonation of delay has been moved accompanied with an affidavit sworn by the assessee. After hearing the Ld. Representatives of the parties, the delay is hereby condoned.

4.

Vide our order of even date we have set aside the order of the Ld. CIT(A) on quantum. We, therefore, set aside the impugned penalty order of the Ld. CIT(A) and restore the matter back to his file for decision afresh in accordance with law after allowing reasonable opportunity of being heard to the parties. We order accordingly.

5.

In the result, the appeal of the assessee is treated as allowed for statistical purpose.

Order pronounced in the open court on 28th June, 2024.

Sd/- Sd/- (R.K. Panda) (Astha Chandra) JUDICIAL MEMBER VICE PRESIDENT पुणे / Pune; दिन ांक / Dated : 28th June, 2024. रदि आदेश की प्रधिधलधप अग्रेधर्ि / Copy of the Order forwarded to : अपील र्थी / The Appellant. 1. प्रत्यर्थी / The Respondent. 2. 3. The Pr. CIT concerned. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, “ए” बेंच, 4. पुणे / DR, ITAT, “A” Bench, Pune. ग र्ड फ़ इल / Guard File. 5. //सत्य दपि प्रदि// True Copy// आिेश नुस र / BY ORDER,

िररष्ठ दनजी सदचि / Sr. Private Secretary आयकर अपीलीय अदिकरण ,पुणे / ITAT, Pune

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