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TMI Blog2020 (7) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... y heard Mr.G.Baskar, learned counsel appearing for the appellant - assessee and Mrs.R.Hemalatha, learned Senior Standing Counsel appearing for the respondent - Revenue. 3. The appeal has been admitted on 29.1.2020 on the following substantial questions of law : "i. Whether the Income Tax Appellate Tribunal was right in law in holding that the penalty levied under Section 271(1)(c) has to be sustained when in its earlier order dated 25.11.2016, the assessee's appeal was allowed and the Departmental appeal was dismissed ? And ii. Whether the Income Tax Appellate Tribunal was right in law in reversing the earlier order of the Tribunal dated 25.11.2016 even after the application under Section 254(2) by the Department was dismissed vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly issued the notice proposing to levy penalty under Section 271(1)(c) of the Act. The notice culminated in an order of penalty dated 27.6.2011. 7. As against the order dated 27.6.2011, the assessee filed an appeal before the Commissioner of Income Tax (Appeals)-II in ITA.No. 20/2011-12/A-II. The penultimate portion of the order dated 06.3.2013 reads that the appeal was partly allowed. The Commissioner of Income Tax (Appeals)-II, while partly allowing the appeal filed by the assessee, held that the provisions of Section 271AAA of the Act would apply for the assessment year 2007-08. Aggrieved by that order, the assessee as well as the Revenue preferred appeals before the Tribunal. The appeal filed by the Revenue was heard along with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal on 25.11.2016, which clearly showed that the appeal filed by the assessee was allowed and the appeal filed by the Revenue was dismissed and that the CIT(A) failed to note that the Tribunal did not restore or reinstate the penalty order under Section 271(1)(c) of the Act. However, the Tribunal elaborately considered the matter and dismissed the appeal of the assessee by order dated 10.9.2019, which is impugned in this appeal. 11. The sheet anchor of the argument of Mr.G.Baskar, learned counsel appearing for the appellant - assessee is on the operative or decretal portion of the order passed by the Tribunal dated 25.11.2016. 12. Mr.G.Baskar, learned counsel for the appellant - assessee is right in his submission to the exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 271AAA of the Act, it is automatic that the levy of penalty made under Section 271(1)(c) of the Act was confirmed. The Tribunal further observed that the assessee had not challenged the levy of penalty under Section 271(1)(c) of the Act. 14. The argument of Mr.G.Baskar, learned counsel appearing for the appellant - assessee is that the assessee had no occasion to challenge the same because the appeal filed by the assessee stood allowed. 15. We are not convinced with the said argument because in paragraph 6 of the order of the Tribunal dated 25.11.2016, there is a clear finding that the assessee is liable to penalty under Section 271(1)(c) of the Act. Hence, if the assessee was aggrieved, she should have challenged that portion of the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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