Chaturbhoj, Ghaziabad V. ITO, Ward-2(1), Ghaziabad

ITA 2301/DEL/2022

AI Insights

The case involves an appeal by the assessee, Chaturbhoj, against the penalty imposed under section 271(1)(c) of the Income Tax Act, 1961, related to the Assessment Year 2009-10. The penalty was originally imposed due to an addition made on account of long-term capital gain from the sale of a capital asset. The ITAT had previously restored the quantum appeal to the AO for rectification, which influenced the decision to allow the appeal against the penalty. The Tribunal's decision emphasized that the penalty could be re-evaluated based on the outcomes of the rectification process.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 121957 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 08-05-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 19-09-2022
• Other Referred Cases: ITA No. 846/Del/2021
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset; Rectification of order
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B: NEW DELHI BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ITA No.2301/Del/2022 Assessment Year: 2009-10 Chaturbhoj, C/o Sanjeev Anand & Associates, 136, Navyug Market, Ghaziabad, Uttar Pradesh, Pin 201001 PAN BEQPC 8131 M vs. ITO, Ward-2(1), Ghaziabad Uttar Pradesh (Appellant) (Respondent) For Assessee : None Revenue For : Shri Sanjay Kumar Yadav, Sr. DR Date of Hearing : 09.05.2023 Date of Pronouncement : 10.05.2023 ORDER PER CHANDRA MOHAN GARG, J.M. This appeal filed by the assessee is directed against the order dated 04.08.2022 of the Ld. NFAC, New Delhi, relating to Assessment Year 2009-10. 2. The learned counsel of the assessee submitted a copy of the order of ITAT SMC Bench dated 25.05.2022 in ITA No. 846/Del/2021 for A.Y. 2009-10 pertaining to assessee’s appeal and submitted that the Tribunal has restored the matter for making necessary rectification to the file of AO. Therefore penalty levied u/s. 271(1)(c) of the Income Tax Act 1961, do not survive and thus the appeal of assessee may kindly be allowed deleting the penalty. ITA No.2301/Del/2022 2 Alternatively, the learned counsel submitted that the issue of imposition of penalty u/s. 271(1)(c) depends upon the rectification order to be passed by the AO as per direction of the Tribunal by order dated 25.05.2022 (supra), therefore the penalty on this count also do not survive. 3. Replying to the above the learned Senior DR agreed that the Tribunal has restored the matter to the file of AO for passing rectification order. However, he submitted that the Assessing Officer is very well entitle to take appropriate action, if it is found necessary, for imposing penalty u/s. 271(1)(c) on the assessee as per outcome of rectification order. 4. On careful consideration of above, I am of the view that the assessee raised issue challenging the action of the AO and first appellate order wherein the assessee has challenge confirmation of addition on account of long term capital gain. From the penalty order, I further observed that the AO has imposed penalty on the same issue of addition on account of long term capital gain on sale of capital asset. Since the quantum appeal has been restored to the file of AO for passing rectification order therefore the penalty impose on the assessee u/s. 271(1)(c) of the Act, on the strength of earlier assessment order dated 31.03.2016 does not survive and we direct the AO to delete the same. Before I part with the order I make it clear that the Assessing Officer would be entitled for initiation of penalty and passing appropriate order u/s. 271(1)(c) of the Act, if it is found necessary as per outcome of rectification order passed in pursuant to the Tribunal order dated 25.05.2022. 7. In the result appeal of the assessee is disposed of in the manner as indicate above. Order pronounced in the open court on 10.05.2023. Sd/- Sd/- (PRADIP KUMAR KEDIA) (CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 10 th May, 2023. ITA No.2301/Del/2022 3 NV/- Copy forwarded to : 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR // By Order // Asstt. Registrar, ITAT, New Delhi