INCOME TAX OFFICER, WARD-2-1, Jaipur V. SHRI GULAM MUSTAFA ANSARI, Jaipur

ITA 707/JPR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1945 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 21-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA CIT DH LS
• Assessee Lawyers: VIJAY GOYAL C A DHK

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 707/JP/17 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 THE ITO , WARD-2(1), JAIPUR. CUKE VS. SHRI GULAM MUSTAFA ANSARI, 3261-62, MAJID MANSION, JAIPUR NAWAB KA CHOURAHA, GHATGATE, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO.: ADDPM3803H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 708/JP/17 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 THE ITO, WARD-2(1), JAIPUR. CUKE VS. SHRI GULAM HAIDER ANSARI, 3261-62, MAJID MANSION, JAIPUR NAWAB KA CHOURAHA, GHATGATE, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO.: AATPA6700C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI A.S. NEHRA (ADDL. CIT) FU/KZKFJRHDH VKSJ LS@ ASSESSEE BY : SHRI VIJAY GOYAL (C.A.) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 24/10/2017 ?KKS'K .KK DH R KJH[K @ DATE OF PRONOUNCEMENT: 26/10/2017. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THESE ARE TWO APPEALS FILED BY THE REVENUE AGAINST THE ORDERS OF LD. CIT(A)- I, JAIPUR DATED 28.07.2017 IN CASE OF SHRI GULAM MUSTAFA ANSARI FOR A.Y. 2007-08 AND SHRI GULAM HAIDER ANSARI FOR A.Y. 2007 -08 RESPECTIVELY. IN ITA NO. 707& 708/JP/17 ITO VS SH. GULAM MUSTAFA ANSARI AND OTHERS 2 ITS APPEALS, THE REVENUE HAS CHALLENGED THE DELETIO N OF PENALTY U/S 271 (1)(C) BY THE LD. CIT(A). 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT IN THE QUANTUM PROCEEDINGS, THE TRIBUNAL HAS ALLOWED THE APPEAL OF THE ASSESSEE AND HAS DELETED THE ADDITION MADE BY THE AO IN BOTH THE CASES. IT WAS ACCORDINGLY SUBMITTED THAT SINCE THE ADDITION HAS B EEN DELETED BY THE TRIBUNAL, THE CONSEQUENT PENALTY LEVIED BY THE AO H AS RIGHTLY BEEN DELETED BY THE LD. CIT(A). 3. PER CONTRA, THE LD. DR SUBMITTED THAT THE REVENU E HAS NOT ACCEPTED THE ORDER OF THE TRIBUNAL IN THE QUANTUM P ROCEEDINGS AND HAS FILED AN APPEAL BEFORE THE HONBLE HIGH COURT. FURT HER, HE RELIED ON THE ORDER OF THE ASSESSING OFFICER. 4. IN ITA NO. 707/JP/2017, THE RELEVANT FINDINGS O F THE LD. CIT(A) ARE REPRODUCED AS UNDER:- (III) I HAVE DULY CONSIDERED THE SUBMISSION OF THE APPELLANT, THE PENALTY ORDER AND THE MATERIAL PLACED ON RECORD. IT IS NOTED THAT VIDE ABOVE REFERRED ORDER, THE APPEAL OF THE APPELL ANT HAS BEEN ALLOWED BY THE HONBLE ITAT, JAIPUR. IT MAY BE MENT IONED THAT THE ADDITION OF RS. 60,12,219/- WAS DELETED BY THE HON BLE ITAT, JAIPUR BY PLACING RELIANCE ON ITS OWN DECISION IN T HE CASE OF THE APPELLANT I.E. SHRI GULAM MUSTAFA ANSARI VS. ACIT IN ITA NO. 967/JP/2015 FOR AY 2005-06 AS THE FACTS OF THESE CA SES WERE SIMILAR. (IV) AS THE ADDITION AMOUNTING TO RS. 60,12,219/- H AS BEEN DELETED BY THE HONBLE ITAT, JAIPUR, THERE REMAINS NO BASIS FOR IMPOSITION OF PENALTY U/S 271(1)(C) OF THE ACT. IT MAY BE MENT IONED THAT IN ITA NO. 707& 708/JP/17 ITO VS SH. GULAM MUSTAFA ANSARI AND OTHERS 3 THE CASE OF K.C. BUILDERS VS. ACIT [2004] 135 TAXMA N 461 (SC), IT HAS BEEN HELD BY THE HONBLE APEX COURT THAT: WHERE THE ADDITIONS MADE IN THE ASSESSMENT ORDER, ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT WAS LEVIED, ARE DE LETED, THERE REMAINS NO BASIS AT ALL FOR LEVYING THE PENALTY FOR CONCEALMENT AND, THEREFORE, IN SUCH A CASE NO SUCH PENALTY CAN SURVIVE AND THE SAME IS LIABLE TO BE CANCELLED AS IN THE INSTANT CA SE. ORDINARILY, THE PENALTY CANNOT STAND IF THE ASSESSMENT ITSELF IS SE T ASIDE. WHERE AN ORDER OF ASSESSMENT OR REASSESSMENT ON THE BASIS OF WHICH PENALTY HAS BEEN LEVIED ON THE ASSESSEE HAS ITSELF BEEN FINALLY SET ASIDE OR CANCELLED BY THE TRIBUNAL OR OTHERWISE, TH E PENALTY CANNOT STAND BY ITSELF AND THE SAME IS LIABLE TO BE CANCE LLED AS IN THE INSTANT CASE ORDERED BY THE TRIBUNAL AND LATER CANC ELLATION OF PENALTY BY THE AUTHORITIES. (V) IN VIEW OF THE ABOVE DISCUSSION, AS THE ADDITIO N MADE BY THE AO AND SUSTAINED BY LD. CIT(A) HAS BEEN DELETED BY THE HONBLE ITAT, JAIPUR, THE PENALTY OF RS. 18,90,000/- IMPOSE D BY THE AO U/S 271(1)(C) OF THE ACT HAS NO LEGS TO STAND AND CANNOT BE UPHELD, HENCE HEREBY CANCELLED. 5. SIMILARLY, IN ITA NO. 708/JP/2017, THE LD. CIT(A ) HAS DELETED THE LEVY OF PENALTY FOLLOWING THE SAME REASONING AS GIV EN IN ITA NO. 707/JP/2017. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. GIVEN THAT THE VERY BASIS FOR LEVY OF PENALTY HAS BEEN DELETED BY THE CO-ORDINATE BENCH IN THE QUANTU M PROCEEDINGS IN BOTH THE CASES, THERE IS NO BASIS LEFT FOR LEVY OF CONSEQUENT PENALTY. IN VIEW OF THE SAME, WE HEREBY AFFIRMED THE ORDER OF T HE LD. CIT(A) WHERE THE PENALTY HAS RIGHTLY BEEN DELETED IN BOTH CASES. ITA NO. 707& 708/JP/17 ITO VS SH. GULAM MUSTAFA ANSARI AND OTHERS 4 IN THE RESULT, BOTH THE APPEALS FILED BY THE REVEN UE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26/10/2017. SD/- SD/- DQY HKKJR FOE FLAG ;KNO (KUL BHARAT) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 26/10/2017 *SANTOSH VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT - THE ITO, WARD-2(1), JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- SHRI GULAM MUSTAFA ANSARI, SHRI GULAM HAIDER ANSARI, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDRVIHY@ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 707 & 708/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR.