TMI Blog2019 (2) TMI 1653X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 15-2-2019 - Shri R.K. Panda And Ms Suchitra Kamble, JJ. Assessee by : Shri Salil Kapoor Ms Ananya Kapoor, Advocates Revenue by : Shri Surender Pal, Sr. DR ORDER R.K. Panda, This appeal by the assessee is directed against the order dated 07th September, 2015 of the CIT(A)-9, New Delhi, relating to assessment year 2000-01. 2. Facts of the case, in brief, are that the assessee is a company in restaurant business. It filed its return of income on 29th December, 2000 declaring total loss of ₹ 99,81,920/-. The return was processed u/s 143(1) on 8th May, 2001. Subsequently, on the basis of the report of the Special Auditor, the case of the assessee was reopened by issue of notice u/s 148. The Assessing Officer completed the assessment u/s 143(3)/147 on 29th December, 2006 determining the total income of the assessee at ₹ 2,54,61,031/-. However, after allowing carried forward business loss and depreciation of earlier years, the total income was determined at nil. The assessee preferred appeal before the CIT(A) against the various additions/disallowances made by the Assessing Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. CIT(A) has failed to appreciate the settled judicial position that assessment proceedings are separate and distinct from penalty proceedings and the fact that some addition is made in the assessment could not automatically justify the imposition of penalty under Section 271(l)(c) of the Act. 6. That the Ld. CIT(A) has completely failed to appreciate that penalty under Section 271(l)(c) of the Act cannot be levied merely because of rejection of a bona fide claim of the appellant. 5. The assessee has also filed application dated 4th February, 2019 for admission of following additional grounds:- Ground 7: That the notice issued under section 271(1)(c)/ 274 of the Act, and the order passed under section 271(l)(c) of the Act are illegal, bad in law and without jurisdiction. Ground 8: That the penalty has been initiated vide notice under section 271(l)(c)/ 274 of the Act without any specific charge, hence, the said notice and the order passed under section 271(l)(c) of the Act are illegal, bad in law and without jurisdiction. Ground 9: That satisfaction recorded/charge levied while completing the assessment, and while levying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions the Assessing Officer has initiated the penalty proceedings and levied penalty u/s 271(1)(c). Referring to the copy of the order of the Tribunal in assessee s own case for assessment years 2006-07, 2002-03 and 2003-04 vide ITA nos.894, 895, 896/Del/2013, order dated 28th June, 2017, she submitted that under identical circumstances, the Tribunal has cancelled the penalty so levied by the Assessing Officer and upheld by the CIT(A). Therefore, this being a covered matter in favour of the assessee, the penalty so levied by the Assessing Officer and upheld by the CIT(A) should be cancelled. 9.1 So far as the merit of the case is concerned, the ld. counsel for the assessee, referring to the order of the Tribunal, submitted that out of the three additions on which penalty has been levied by the Assessing Officer, the disallowance of alleged personal expenditure has been allowed by the Tribunal at para 7.2 of the order. However, the remaining two additions have been confirmed by the Tribunal. Relying on various decisions including the decision of the Hon'ble Supreme Court in the case of CIT vs. Reliance Petro Products Pvt. Ltd., reported in 322 ITR 158 (SC), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue had come up before the Tribunal in assessee s own case and the Tribunal, vide ITA Nos. 894, 895, 896/Del/2013, order dated 28th June, 2017, for assessment years 2006-07, 2002-03 and 2003-04 respectively has cancelled the penalty so levied by observing as under:- 10. We have heard both the parties and perused the orders passed by the Revenue Authorities along with the relevant records available with us. Firstly, we have perused the assessment order dated 11.10.2010 passed u/s. 143(3) of the Act and found that AO while completing the assessment has not recorded the satisfaction and has not initiated the penalty proceedings. Similarly, at the time of imposing the penalty u/s. 271(1) of the Act, the AO has levied the penalty, but did not mention under which limb the penalty has been imposed whether it is on account of inaccurate particulars of income or concealment of income. Therefore, the entire penalty proceedings stand vitiated. In view of above, the penalty is not sustainable in the eyes of law. Our aforesaid view is fortified by the following decisions:- i) CIT Anr. Vs. M/s SSA s Emerald Meadows 2015 (11) TMI 1620 Karnataka High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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