Vitthal Manik Dhawale, Pune V. Deputy Commissioner of Income-tax, Circle - 8, Pune

ITA 1539/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6064 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 19-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Keywords: Set aside
• Section: 271(1)(c); 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 1539 /P U N/201 7 / ASSESSMENT YEAR : 20 09 - 10 VITTHAL MANIK DHAWALE, S. NO. 95, GAT NO. 669, MOSHI ALANDI ROAD, MOSHI, PUNE 412105 PAN : AANPD1485D ....... / APPELLANT / V/S. D Y. COMMISSIONER OF INCOME TAX, CIRCLE 8, PUNE / RESPONDENT ASSESSEE BY : S /S HRI SUHAS BORA & SANKET BORA REVENUE BY : SHRI PANKAJ GARG / DATE OF HEARING : 29 - 07 - 2019 / DATE OF PRONOUNCEMENT : 01 - 0 8 - 2019 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 9, PUNE DATED 31 - 03 - 2017 FOR THE ASSESSMENT YEAR 20 09 - 10 CONFIRMING LEVY OF PENALTY U/S. 271(1)(C) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) . 2 ITA NO . 1539/PUN/2017, A.Y. 2009 - 10 2. SHRI SUHAS BORA APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED AT THE OUTSET THAT IN ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAD MADE ADDITION OF RS.1,67,42,000/ - ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN SAVING BANK ACCOUNT OF ASSESSEE. PENALTY PROCEEDINGS U/S. 27 1(1)(C) OF THE ACT WERE INITIATED ON THE AFORESAID ADDITION . THE ASSESSING OFFICER VIDE ORDER DATED 30 - 03 - 2015 LEVIED PENALTY OF RS.57,14,633/ - ON THE SAID ADDITION. THE ASSESSEE FILED APPEAL AGAINST THE AFORESAID ADDITION. THE FIRST APPELLATE AUTHORITY UPHELD THE SAME. IN SECOND APPEAL BEFORE THE TRIBUNAL, THE ASSESSEE SUCCEEDED. THE TRIBUNAL VIDE ORDER DATED 05 - 04 - 2018 SET ASIDE THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER. THUS, THE ENTIRE ADDITION WAS KNOCKED DOWN BY THE TRIBUNAL. THE LD. AR F URNISHED A COPY OF THE ORDER OF TRIBUNAL IN ITA NO. 980/PUN/2014 FOR ASSESSMENT YEAR 2009 - 10 DECIDED ON 05 - 04 - 2018. 3. SHRI PANKAJ GARG REPRESENTING THE DEPARTMENT FAIRLY ADMITTED THAT THE TRIBUNAL IN QUANTUM APPEAL BY THE ASSESSEE HAS RESTORED THE ISSU E BACK TO THE FILE OF ASSESSING OFFICER. THE LD. DR SUBMITTED THAT THE PRESENT PENALTY APPEAL CAN ALSO BE RESTORED TO THE FILE OF ASSESSING OFFICER. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVE OF RIVAL SIDES AND HAVE PERUSED THE ORDER S OF A UTHORITIES BELOW. THE ASSESSEE IS IN APPEAL AGAINST LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. THE CO - ORDINATE BENCH OF TRIBUNAL IN QUANTUM APPEAL BY THE ASSESSEE IN ITA NO. 980/PUN/2014 (SUPRA) HAS RESTORED THE ISSUE BACK TO THE FILE OF ASSESSING OFFICE R FOR DE - NOVO ADJUDICATION. SINCE, THE SUBSTRATUM FOR LEVY OF PENALTY HAS ERODED, THE PENALTY U/S. 271(1)(C) OF THE ACT WOULD NOT SURVIVE. 3 ITA NO . 1539/PUN/2017, A.Y. 2009 - 10 ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE AND THE APPEAL OF ASSESSEE IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THURSDAY, THE 01 ST DAY OF AUGUST, 2019. SD/ - SD/ - ( / ANIL CHATURVEDI ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 01 ST AUGUST, 2019 . RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 9 , PUNE 4. THE PR. COMMISSIONER OF INCOME TAX - 5 , PUNE 5 . , , , / DR, ITAT, B BENCH, PUNE. 6 . / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE