Assistant Commissioner of Income-tax, Central Circle -2, , Nashik V. M/s. Vijay Construction, Nashik

ITA 994/PUN/2018

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6749 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2021
• Appeal Filed By: Department
• Order Result: PartlyAllowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 31-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Revision of order
• Section: 263; 132; 143(3); 133A; 271D; 153C

Judgement Text

आयकर अपीलीय अिधकरण “ए” ᭠यायपीठ पुणे मᱶ । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE (Through Virtual Court) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI S. S. VISWANETHRA RAVI, JM आयकर अपील सं. / ITA No.994/PUN/2018 िनधाᭅरण वषᭅ / Assessment Year : 2009-10 ACIT, Central Circle-2, Nashik. .......अपीलाथᱮ / Appellant बनाम / V/s. M/s. Vijay Construction, Flat No.10, Shivasagar Society, Thatte Nagar, Nashik-422005. PAN : AAGFV5234M ......ᮧ᭜यथᱮ / Respondent Revenue by : Shri S. P. Walimbe Assessee by : Shri Pramod S. Shingte सुनवाई कᳱ तारीख / Date of Hearing : 07.12.2021 घोषणा कᳱ तारीख / Date of Pronouncement : 08.12.2021 आदेश / ORDER PER INTURI RAMA RAO, AM: This is an appeal filed by the Revenue directed against the order of ld. Commissioner of Income Tax (Appeals)- 12, Pune (‘CIT(A)’ for short) dated 28.02.2018 for the assessment year 2009-10 deleting levy of penalty u/s 271D of the Income Tax Act, 1961 (‘the Act’). 2. The brief facts of the case are as under :- The appellant is a partnership firm. The return of income for the assessment year 2009-10 was filed on 29.09.2009 declaring total income of Rs.5,69,048/-. The survey operations u/s 133A were conducted in the business premises of the appellant on 04.10.2010 consequent to the search action u/s 132 in the case of M/s. Anant Technocrats Pvt. Ltd.. 2 ITA No.994/PUN/2018 Subsequently, the assessment came to be completed u/s 143(3) r.w.s. 153C at a total income of Rs.8,12,936/-. Subsequently, the Commissioner of Income Tax (Central), Nagpur in exercise of power vested with him u/s 263 set-aside the assessment order vide order dated 19.03.2015 directing the Assessing Officer to make a fresh assessment and consequential order u/s 143(3) r.w.s. 263 was passed vide order dated 24.11.2015 at a total income of Rs.18,77,558/-. During the course of consequential assessment proceedings, the Assessing Officer initiated penalty proceedings u/s 271D for violation of provisions of section 269SS of the Act. The Assessing Officer levied a penalty of Rs.1.05 crores u/s 271D vide order dated 27.07.2016. 3. Being aggrieved, an appeal was filed before the ld. CIT(A), who vide impugned order directed the Assessing Officer to delete the penalty in the light of order passed by the ITAT quashing the 263 order. 4. Being aggrieved by the order of the ld. CIT(A), the Revenue is in appeal before us in the present appeal. 5. It is contended that the ld. CIT(A) ought not to have quashed the penalty order taking into consideration the fact that the 263 order was quashed by the Tribunal as the penalty proceeding u/s 271D are independent of the assessment proceedings. 6. On the other hand, ld. AR vehemently argued that the penalty proceedings were initiated as consequence of order passed u/s 263 of the Act. Once the order passed u/s 263 is cancelled, the penalty proceedings u/s 271D have no legs to stand. 3 ITA No.994/PUN/2018 7. We heard the rival submissions and perused the material on record. It is a trite law the penalty proceedings are independent of the assessment proceedings. Therefore, the fact that the Tribunal had quashed the order of revision passed u/s 263 has no bearing on the penalty proceedings initiated u/s 271D nor is it subject matter of revision u/s 263 of the Act. Therefore, the ld. CIT(A) had clearly fell in error in quashing the penalty proceedings u/s 271D taking cognizance of the fact that the order of revision passed u/s 263 was quashed by the Tribunal. Thus, the order of the ld. CIT(A) is set-aside and remand the issue back to the file of the ld. CIT(A) with direction to decide the issue in appeal on merits in accordance with law. 8. In the result, the appeal filed by the Revenue stands partly allowed for statistical purposes. Order pronounced on this 08 th day of December, 2021. Sd/- Sd/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) ᭠याियक सद᭭य/JUDICIAL MEMBER लेखा सद᭭य/ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 08 th December, 2021. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A)-12, Pune. 4. The Pr. CIT, Central, Nagpur. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “ए” बᱶच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.