TMI Blog2022 (5) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... stical purpose. Whether CIT(A) has erred in directing the Assessing Officer to recompute the quantum of penalty only to the extent of the addition confirmed by the ITAT without appreciating the fact that the revenue is not accepted the order of the ITAT and same is challenged before Hon'ble High Court which is still pending? - In our considered view once the quantum appeal is decided by the ITAT the same is applicable on both Ld.CIT(A) as well as Assessing Officer, therefore the order passed by the Ld.CIT(A) is binding on the Assessing Officer. Therefore, the ground raised by the revenue is accordingly dismissed. - ITA NOs. 891, 892, 893/MUM/2020, 1698, 1699 & 1700/MUM/2020 - - - Dated:- 25-2-2022 - SHRI S. RIFAUR RAHMAN, HON&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 271(1)(c) of the Act. The assessee preferred appeal before ITAT against the order passed by Ld.CIT(A) confirming the addition made by the Assessing Officer, the ITAT vide order dated 28.02.2018 allowed part relief to the assessee against the additions made by the Assessing Officer. Subsequently the Assessing Officer passed the revised penalty order u/s. 271(1)(c) of the Act dated 27.03.2018. The Assessing Officer once again passed the revised penalty order giving effect to the order passed by the ITAT u/s.275(1A) r.w.s. 271(1)(c) of the Act dated 28.09.2018. Aggrieved assessee preferred an appeal before the Ld.CIT(A) against the order passed u/s. 271(1)(c) of the Act dated 27.03.2018 and also against order passed u/s. 275(1A) r.w.s. 271( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is challenged before Hon ble Bombay High Court which is still pending? 2. Whether on the facts and in the circumstances of the case and in law, the Ld.CIT(A was right in holding that the penalty order u/s.275(1A) r.w.s. 271(1)(c) of the Act dated 25.09.2018 does not indicate, if prior approval of JCIT has been obtained by the A.O in passing order u/s.275(1A) and therefore is held to be illegal and void ab initio without appreciating the fact that the A.O has only given effect to ITAT order dated 28.02.2018 and reduced the penalty to Rs.83,63,107/- from Rs.4,404,154/- by passing penalty order u/s.275(1A) r.w.s. 271(1)(c) on 25.09.2018 whereas before passing the penalty order u/s.271(1)(c) of the Act dated 27.03.2018, the A.O has alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et receipts from RCBs, which is not emanating from the order impugned therein. (ii) BECAUSE, the CIT(A) has erred in law in completely overturning the basis of imposition of penalty as contained in the order impugned before him. 3. WITHOUT PREJUDICE, BECAUSE, the CIT(A) has erred in law in failing to understand that there is no concealment of income since the estimated income of Rs.273,87,071/- on account of RCBs, stood already disclosed in the hands of the partners Shri Hari Mujat and Shri Bachubhai Pate! in their respective returns of income for AY 2011-12 in the ratio 50: 50. 4. BECAUSE, the CIT(A) has erred in law and on facts in confirming penalty on estimated income of Rs.270,65,069/-, ignoring the fact that estimating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r u/s. 275(1A) r.w.s. 271(1)(c) of the Act dated 25.09.2018 the earlier order passed by him does not survive i.e. 27.03.2018. She objected to the directions given to Assessing Officer by the Ld.CIT(A) to follow the directions given by him. 11. On the other hand, Ld. DR submitted that Ld.CIT(A) cancelled the second penalty order on the technical grounds that Assessing Officer has not taken prior approval of JCIT before passing this order. She submitted that this is a procedural mistake which is rectifiable, therefore, she prayed that it may be remitted back to the file of the Assessing Officer so that he can rectify the above mistake. In this regard she relied on the following case laws: (i). G. Manoharan v. ACIT [2006] 155 Taxman 569 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not obtaining prior approval from JCIT. In our considered view, it is rectifiable mistake therefore we remit the second revised penalty order back to the file of the Assessing Officer to obtain proper approval and pass the order. Accordingly, the Ground Nos. 2 and 3 raised by the revenue are allowed for statistical purpose. 15. With regard to Ground No. 1 raised by the revenue it is stated that Ld.CIT(A) has erred in directing the Assessing Officer to recompute the quantum of penalty only to the extent of the addition confirmed by the ITAT without appreciating the fact that the revenue is not accepted the order of the ITAT and same is challenged before Hon'ble High Court which is still pending. 16. In our considered view once the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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