Sh. Mukesh Mittal, Panchkula V. DCIT, CC-II, Chandigarh

ITA 1188/CHANDI/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6171 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 07-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCHB, CHANDIGARH BEFORE SHRI N.K. SAINI, VICE PRESIDENT AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO. 1188/CHD/2018 (ASSESSMENT YEAR : 2006-07) SHRI MUKESH MITTAL VS. THE DCIT H.NO. 515, SECTOR 16 CENTRAL CIRCLE-II PANCHKULA CHANDIGARH PAN NO. ACBPM4280H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI. SACHIN JAIN, ADVOCATE DEPARTMENT BY : SHRI. MANJIT SINGH, SR. DR DATE OF HEARING : 23/01/2019 DATE OF PRONOUNCEMENT : 23/01/2019 O R D E R PER N.K. SAINI, VICE PRESIDENT : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 30/06/2018 OF LD. CIT(A)-3, GURGAON. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THE APPEAL RELATING TO THE SUSTAINING OF PENALTY AMOUNTING TO RS. 34,964/- LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (HERE INAFTER REFERRED TO AS ACT). 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE ADDITION ON THE BASIS OF WHI CH IMPUGNED PENALTY WAS LEVIED BY THE ASSESSING OFFICER HAD BEEN DELETED BY THIS BENCH OF THE TRIBUNAL IN ITA NO. 38/CHD/2018 FOR THE A.Y. 2006-07 VIDE ORDER DT. 05/11/2018, COPY OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON RECORD. 4. IN HIS RIVAL SUBMISSIONS, THE LD. SR. DR ALTHOUG H SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW BUT COULD NOT CONTROVERT ON THE A FORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD, IN T HE PRESENT CASE IT IS AN ADMITTED FACT THAT THE ADDITION ON THE BASIS OF WHI CH PENALTY WAS LEVIED BY THE 2 ASSESSING OFFICER HAD BEEN DELETED BY THE ITAT VID E AFORESAID REFERRED TO ORDER DT. 05/11/2018. ON A SIMILAR ISSUE THE HONBLE SUPREME COURT IN THE CASE OF K.C. BUILDERS AND ANOTHER VS. ACIT (2004) 265 ITR 562 HELD AS UND ER: WHERE THE ADDITIONS MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED, ARE DELETED, THE RE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT AND, THEREFORE, IN SUCH A CASE NO PENALTY CAN SURVIVE AND THE PENALTY IS LIABLE TO BE CANCELLED. ORDINARILY, PENALTY CANNOT STAND IF THE ASSESSMENT ITSELF IS SET ASIDE. 5.1 IN THE PRESENT CASE ALSO SINCE THE ADDITION ON THE BASIS OF WHICH THE PENALTY WAS LEVIED IS NOT IN EXISTENCE THEREFORE TH E IMPUGNED PENALTY UNDER SECTION 271(1)(C) OF THE ACT LEVIED BY THE ASSESSIN G OFFICER AND SUSTAINED BY THE LD. CIT(A) IS DELETED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 23/01/2019) SD/- SD/- (SANJAY GARG) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED : 23/01/2019 AG COPY TO: 1.THE APPELLANT, 2. THE RESPONDENT, 3. THE CIT(A), 4. THE CIT, 5. THE DR