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Income Tax Appellate Tribunal, PUNE BENCHES “B” :: PUNE
Before: SHRI S.S.GODARA & DR. DIPAK P. RIPOTE
ORDER
PER DR. DIPAK P. RIPOTE, AM:
This is an appeal filed by the assessee against the order of ld.Commissioner of Income Tax(Appeals) passed under section 250 of the Income Tax Act, 1961 dated 03.08.2023 confirming the penalty under section 270A of the Act. Grounds of appeal
raised by the assessee are as under :
1. The Ld. Commissioner of Income Tax (Appeals) has erred in not deciding on merits the followings grounds taken in the grounds of appeal. (a) The Assessing Officer has eared in levying penalty of Sachanand Relumal Jagwani [A] Rs.55,49,112/- u/s 270A of the Income Tax Act (specific ground No. 3 raised in para 13 of Form No. 35). (b) The penalty levied u/s 270A of Rs.55,49,112/- may please be dropped (specific ground Nos. 1 to 8 raised in Para 13 of the Form No. 35).
The Commissioner of Income Tax (Appeals) has eared in confining the adjudication of the appeal, as mentioned by him in Para 14.0 page 11 of the impugned appellate order, only to the violation of procedural aspect of the provisions of section 275 of the Income Tax Act.
Penalty u/s 270A of the Income Tax Act is not attracted in this case as the additions/disallowances made in the assessment order are not sustainable on the facts and the circumstances of the case and in law.
To levy the penalty the Assessing Officer has invoked provision of clause (e) of Sub Section (9) of section 270A of the Income Tax Act i.e. the failure to record any receipt in the books of accounts having a bearing on the total income, without pointing out as to which receipt is not recorded by the assessee in the books of accounts. As such the provisions of clause (e) of Sub Section (9) of Section 270A of the Income Tax Act are not attracted in this case. Penalty levied u/s 270A of the Act is there not sustainable in law. The same may be deleted.
5. The assessee craves leave to add, to modify to delete or to amend any or all of the above grounds of appeal
.” Submission of ld.AR :
2. The ld.Authorised Representative(ld.AR) of the assessee submitted that the appeal filed by the assessee against the assessment order dated 25.06.2021 for A.Y.2018-19 is pending before the ld.CIT(A). The ld.AR filed the copy of the Form No.35 to demonstrate the same. In this case, there was addition of Rs.87,87,859/- and Rs.7,99,500/- in the assessment order. Ld.AR explained that Assessing Officer(AO) had levied penalty under 2
Sachanand Relumal Jagwani [A] section 270A of the Act. Ld.CIT(A) had confirmed the said penalty without waiting for the outcome of Quantum Appeal. The ld.AR submitted that if assessee gets relief in Quantum Appeal, the penalty will not be maintainable. Therefore, without disposal of quantum appeal, confirming penalty is bad in law. The ld.AR also raised the legal ground that AO has not specified the limb.
Submission of ld.DR : 3. Ld.Departmental Representative(ld.DR) for the Revenue relied on the order of AO and ld.CIT(A). Findings & Analysis : 4. We have heard both the parties and perused the records. It is a fact that appeal filed by the assessee against the assessment order is pending before the ld.CIT(A). In the absence of decision on the quantum of addition, it is premature to levy penalty. Therefore, we set-aside the order of ld.CIT(A) to ld.CIT(A) for denovo adjudication after considering the decision of ld.CIT(A) regarding the additions made in the assessment order. The ld.CIT(A) shall grant opportunity to the assessee. The ld.CIT(A) shall also decide the legal ground raised by the assessee regarding levying penalty without specifying the limb of the section 270A of the Act.
Sachanand Relumal Jagwani [A] Accordingly, appeal of the assessee is allowed for statistical purpose.
In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open Court on 26th March, 2024.