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TMI Blog2015 (11) TMI 1776X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in levying penalty of Rs. 3,18,200/- and that too without assuming jurisdiction as per law and without considering the facts and circumstances of the case and the impugned penalty order being illegal and void ab-initio. 2. That in any case and in any view of the matter, action of Ld. CIT(A) in not quashing the penalty order framed by Ld. AO is beyond jurisdiction and without considering the facts and circumstances of the case and the impugned penalty order being illegal and void ab-initio and the impugned penalty order has been framed without considering the submissions/evidences of the assessee an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee and without providing any adverse material on record and the same is not sustainable on various legal and factual grounds." 2. The facts in brief are that the assessee filed return of income declaring income of Rs. 7,12,362/- on 28.09.2006. In the course of scrutiny proceedings, the ld. Assessing officer noticed that gross receipt from contract work was shown in the return of income at Rs. 1,47,50,000/- as against the gross receipt of Rs. 1,57,89,871/- of contract from M/s. Crew B.O.S. Products Limited reported in the Annual Information Return (AIR). The ld. Assessing officer completed the scrutiny assessment under section 144 of the Act i.e. ex-party assessment on 31.12.2008 adding thereby the difference in gross receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore the order of penalty imposed by the ld. Assessing Officer was without any jurisdiction. The Authorized Representative relied on the decision of the jurisdictional High Court in the case of 'Madhushree Gupta' Vs. Union of India (2009) 317 ITR 107 (Del) and further relied on the decision of ITAT Delhi 'H' Bench in the case of 'Triveni Engineering and Industries Ltd.' Vs. DCIT in ITA No. 5709/Del/2010. On the other hand the learned Senior Departmental Representative relied on the order of the lower authorities and submitted that in view of the non-compliance by the assessee on various notices, the penalty was rightly confirmed by the learned Commissioner of Income-tax (Appeals). 5. We have heard the rival submission and perused the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer has failed to record any prima-facie satisfaction in respect of initiation of penalty proceeding in the assessment order, which being a sine-qua-non i..e prime requirement in view of the judgment of the Hon'ble jurisdictional High Court in the case of Madhushree Gupta (supra). The relevant finding of the Hon'ble High Court is as under:- "Conclusions 19. In the result, our conclusion are as follow:- . : (i) Section 271(1B) of the Act is not violative of Article 14 of the Constitution. (ii) The position of law both pre and post amendment is similar, in as much, the Assessing Officer will have to arrive at a prima facie satisfaction during the course of proceedings with regard to the assesses having concealed particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er passed under section 144 of the Act, respectfully following the judgement of the jurisdictional High court in the case of Madhushree Gupta( supra) and decision of the Tribunal in the case of Triveni Engineering and Industries Ltd. (supra), we hold that in absence of any prima-facie satisfaction recorded by the ld. Assessing Officer for initiation of penalty in the assessment order, the penalty levied by the AO is without any jurisdiction and void ab-initio, therefore, order of the learned Assessing Officer passed under 271(1)(c ) of Act is quashed and the ground No. 1 of the assessee is allowed. 10. In view of above, remaining grounds of the assessee are not required to be adjudicated. 11. In the result, the appeal filed by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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