Munni, Noida V. ITO WARD 1(4), Ghaziabad

ITA 3419/DEL/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9438 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 17-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI “E” BENCH: NEW DELHI BEFORE SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER & SHRI KUL BHARAT, JUDICIAL MEMBER ITA No.3419/Del/2019 [Assessment Year : 2008-09] Munni, H.No.26, Sharfabad, Sec-73, Noida, Uttar Pradesh PAN-ELBPM5603R vs ITO, Ward-1(4), Ghaziabad. APPELLANT RESPONDENT Appellant by Shri Vineet Garg, Adv. Respondent by Shri Jeetender Chand, Sr.DR Date of Hearing 07.09.2022 Date of Pronouncement 07.09.2022 ORDER PER KUL BHARAT, JM : This appeal filed by the assessee for the assessment year 2008-09 is directed against the order of Ld. CIT(A), Ghaziabad dated 30.11.2018. 2. The assessee has raised following grounds of appeal:- 1. “The ld.CIT(A) has erred on facts and in law in upholding the impugned order of the ld.AO, which is without jurisdiction, contrary to law, equity and justice and facts and material on record, arbitrary, based on conjectures and surmises, passed without application of mind. 2. The ld.CIT(A) has erred in law in upholding unlawful order made by AO u/s 271(1)(c). 3. The ld.AO has erred on facts and in law in initiating proceedings u/s 271(1)(c) without proper verification regarding taxability of a farmer and failing to comply with the ....... 4. ..................... 2 | Page 5. The appellant denies her liability to tax/penalty as upheld by the ld.CIT(A) and determined and computed by the learned assessing officer and the manner in which it has been so determined or computed. 6. The appellant craves leave and sanction of the Hon’ble ITAT to file additional evidence, if so required for proper prosecution of the case, based on facts and circumstances which has not been or could not be educed or filed before lower authorities either because proper and sufficient opportunity was not provided or because it was not solicited or its need was not appreciated. 7. The appellant craves leave to and permission of the Hon’ble ITAT to add to or alter any of the grounds of appeal at any time upto the final decision of the appeal. FACTS OF THE CASE 3. Facts giving rise to the present appeal are that in this case, assessment was framed u/s 144/147 of the Income Tax Act, 1961 [“the Act”] vide order dated 29.02.2016. The Assessing Officer [“AO”] while framing the assessment, made addition of Rs.39,70,500/-. The AO also initiated penalty proceedings u/s 271(1)(c) of the Act. Thereafter, the AO proceeded to imposed penalty amounting to Rs.12,88,000/-. 4. Aggrieved against this, the assessee preferred appeal before Ld.CIT(A), who after considering the submissions, dismissed the appeal of the assessee in limine on the ground of delay. 5. Aggrieved against the order of Ld.CIT(A), the assessee is in appeal before this Tribunal. 6. At the outset, Ld. Counsel for the assessee submitted that the assessee also had challenged the addition in quantum proceedings and the Hon’ble 3 | Page Tribunal in ITA No.3420/Del/2019 for Assessment Year 2008-09 vide order dated 29.11.2021 is pleased to set aside the impugned order and restored the assessment to the file of the AO. Therefore, he submitted that the impugned penalty does not survive. 7. On the other hand, Ld. Sr. DR opposed the submissions and supported the orders of the authorities below. However, he fairly conceded that the Tribunal has set aside the assessment order. 8. We have heard Ld. Authorized Representatives of the parties and perused the material available on record and gone through the orders of the authorities below. We find that Tribunal in ITA No.3420/Del/2019 for AY 2008-09 in quantum proceedings has set aside the assessment by observing as under:- 7. “I am of the considered opinion that the ld.CIT(A) should not have dismissed the appeal on account of delay in filing of the appeal. However, considering the fact that the assessment order was passed u/s 144 of the IT act and the ld. Counsel for the assessee is now giving an undertaking that the assessee will appear before the AO and cooperate in completion of the assessment and produce the necessary details for completion of the assessment, I deem it proper to restore the issue to the file of the AO with a direction to grant one last opportunity to the assessee to substantiate her case and decide the issue as per fact and law. The assessee is also hereby directed to appear before the AO and substantiate her case without seeking any adjournment under any pretext failing which the AO is at liberty to pass appropriate order as per law. I hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.” 4 | Page 9. Since the assessment on the basis of which the impugned penalty was imposed has been set aside, we therefore, set aside the impugned order and direct the AO to delete the penalty. However, the AO would be at liberty to initiate penalty proceedings afresh if he deems fit. Thus, grounds raised by the assessee are allowed for statistical purposes. 10. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 07 th September, 2022. Sd/- Sd/- (N.K.BILLAIYA) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER * Amit Kumar * Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI