9911796707
TMI Blog2010 (10) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... e it is fully explained that the penalty is imposable on determination of the undisclosed income of the block period and determination of the tax payable on the basis of assessment as per section 158BC(c) of the Act. The learned Assessing Officer has erred and acted illegally in imposing the penalty without determining the income and tax thereon as the assessment had been set aside by the Hon'ble Income Tax Appellate Tribunal and final assessment was completed on 14.12.2007 i.e. later than the penalty order passed on 26.04.2007. 3. Because the levy of penalty is bad both on facts in law and not maintainable." 2. The only grievance of the assessee in this appeal relates to the penalty u/s 158BFA of the IT. Act, 1961. 3. The facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly sustained by the ITAT, I think, according to the provisions of section 158BFA(3)(c), there is no bar or violation of law on the AO in doing so. The submission of the assessee that 'the Hon'ble Income Tax Appellate tribunal set aside the assessment order vide appeal No. 324/Alld of 2002 dated 31.07.2006 and the fresh assessment has been passed by the learned assessing officer on 14.12.2007 and that during the pendency of assessment proceedings the learned Assessing Officer has passed the penalty order on 26.04.2007 without any authority of law' is also not correct, since the Hon'ble ITAT had not set aside the whole assessment order (except a portion of single addition) or all additions made therein. The AO has only taken up those addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions of the ITAT given in order dated 31/07/2006 in I.T.A. No. 324/All/2002 and the penalty order has been passed on 26/04/2007, therefore, when the penalty order was passed, the assessment order was not available with the Assessing Officer. On a similar issue, Hon'ble Calcutta High Court in the case of Nawn Estates (P.) Ltd. (supra) has held as under: "That it could not be contended that as penalty was part of assessment proceedings, even though it might be imposed by a separate proceedings, it should be simultaneous with the assessment proceeding. Even though from one point of view, penalty proceedings are connected with assessment proceedings, yet in the scheme of the Act, the proceedings for imposition of penalty are independent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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