TMI Blog2016 (6) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... . Year 2004-05. 2. The Revenue has taken the following grounds of appeal. (i) On the facts and circumstances whether the Ld. CIT(A) was right in deleting the penalty without considering the original penalty order u/s 271(1)(c) of the I.T. Act, 1961. (ii) On the facts and circumstances whether the Ld. CIT(A) was right in deleting the penalty when the Hon ble ITAT has allowed the miscellaneous application filed by the assessee for recalling the order of the Hon ble ITAT wherein the Hon ble ITAT has confirmed the assessment order of the Assessing Officer but no further information regarding filing of appeal is on record. 3. The learned DR, at the outset, heavily placed his reliance on the order of Assessing Officer. 4. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of the appellant by applying net profit rate of 5%. I have gone through the submissions of the appellant, assessment order and other documents on record. It is observed that a penalty order imposing penalty of 100% of tax sought to be evaded in respect of this income was already made on 30.12.2008. On appeal before the CIT(Appeals), Jammu , the then CIT(Appeal) passed order in appeal no 754/08-09 dated 16.10.2009 deleting the said penalty and the order of CIT(A), Jammu was further upheld by the Hon'ble ITAT, Amritsar vide order no. ITA 33(ASR)/2010. The AO was asked to comment vide letter dated 13.11.2013 on appellant's submission as to how the penalty was again imposed. However, no reply received from AO till passing of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal is received by the Chief Commissioner or Commissioner, whichever period expires later: [Provided that in a case where the relevant assessment or other order is the subject-matter of an appeal to the Commissioner (Appeals) under section 246 or section 246A, and the Commissioner (Appeals) passes the order on or after the 1st day of June, 2003 disposing of such appeal, an order imposing penalty shall be passed before the expiry of the financial year in which the proceedings, in the course of which action for imposition of penalty has been initiated, are completed, or within one year from the end of the financial year in which the order of the Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the department. We further find that the assessment was completed by applying 5% as net profit of gross receipts which was estimation basis and the judgment relied upon by learned AR clearly states that in the case of estimation of profit penalty u/s 271(1) (c ) was not imposable. 6. The grievance of Revenue that quantum was decided against assessee by Hon ble Tribunal and M.A filed by assessee against such order has also been dismissed and therefore, penalty was imposable does not hold any force in view of the fact that assessment proceedings and penalty proceedings are independent proceedings. 7. In view of the above, the appeal filed by the Revenue is dismissed Order pronounced in the open Court on 6th May, 2016. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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