Shri Deepak Madanlal Maliwal, Ahmedabad V. The Deputy Commissioner of Income Tax, Circle-6(1), Ahmedabad

ITA 1036/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6109 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 01-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMEET KUMAR VERMA
• Section: 271(1)(c)

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR ./ I.T.A. NO. 1036/AHD/2017 ( ASSESSMENT YEAR : 2009-10) DEEPAK MADANLAL MALIWAL 5, SAMARTH APARTMENT, OPP. STATE BANK OF HYDERABAD, MANINAGAR, AHMEDABAD 380008 / VS. DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE 6(1), AHMEDABAD ./ ./ PAN/GIR NO. : ALOPM5900G ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI SAKAR SHARMA, A.R. / RESPONDENT BY : SHRI SUMEET KUMAR VERMA, SR.D.R. DATE OF HEARING 24/01/2019 !'# / DATE OF PRONOUNCEMENT 29/01/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-6, AHMEDAB AD (CIT(A) IN SHORT), DATED 28.02.2017 ARISING IN THE PENALTY ORDER DATED 23.02.2016 PASSED BY THE ASSESSING OFFICER (AO) UND ER S. ITA NO. 1036/AHD/17 [DEEPAK M. MALIWAL VS.DCIT] A.Y. 2009-10 - 2 - 271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT) CON CERNING AY 2009-10. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA D AS UNDER: 1. THE LD. CIT (A) ERRED ON FACTS AND IN LAW IN CO NFIRMING ACTION OF ASSESSING OFFICER LEVYING PENALTY OF RS. 9,01,368/- WITHOUT APPRECIATING THE FACT THAT THERE WAS NO INI TIATION OF PENALTY PROCEEDINGS IN THE ASSESSMENT ORDER. 2. THE LD. CIT (A) ERRED ON FACTS AND IN LAW IN CONFIRMING ACTION OF ASSESSING OFFICER IN ISSUING NOTICE U/S 2 71(1)(C) R.W.S. 274 EVEN THOUGH THERE WAS NO INITIATION OF P ENALTY PROCEEDINGS IN THE ASSESSMENT ORDER. 3. THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN CO NFIRMING ACTION OF ASSESSING OFFICER EVEN THOUGH THE NOTICES ISSUED U/S 271(1)(C) R.W.S. 274 WERE NOT IN ACCORDANCE WIT H THE PROVISIONS OF THE ACT IN AS MUCH AS PRINTED NOTICE WAS ISSUED IN MECHANICAL MANNER. 4. THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN CO NFIRMING ACTION OF ASSESSING OFFICER IN LEVYING PENALTY U/S 271(1)(C) ON DISALLOWANCE OF INTEREST OF RS. 28,33,624/- FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME. 3. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED AR FOR THE ASSESSEE SUBMITTED THAT THE QUANTUM ADDITIONS/D ISALLOWANCES GIVING RISE TO THE IMPOSITION OF PENALTY IN APPEAL HAS BEEN SET ASIDE BY THE CO-ORDINATE BENCH OF TRIBUNAL IN ITA N O. 1363/AHD/2014, ORDER DATED 07.07.2017 IN THE QUANTU M PROCEEDINGS TO THE FILE OF THE CIT(A). 4. IN VIEW OF THE FACT THAT THE QUANTUM ADDITIONS/D ISALLOWANCES ITSELF HAS BEEN SET ASIDE HAVING REGARD TO THE APPE LLATE ORDER OF THE ITAT IN QUANTUM PROCEEDINGS, THE VERY BASIS FOR IMP OSITION OF PENALTY UNDER S. 271(1)(C) DOES NOT SURVIVE AT PRES ENT. THEREFORE, ITA NO. 1036/AHD/17 [DEEPAK M. MALIWAL VS.DCIT] A.Y. 2009-10 - 3 - THE ACTION OF THE CIT(A) TOWARDS SUSTAINING PENALTY IS SET ASIDE AND RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH A DJUDICATION IN THE LIGHT OF QUANTUM APPEAL. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 29/01/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 29/01/2019