TMI Blog2020 (12) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial precedents and we set aside the order of the CIT(A) and direct the A.O to delete penalty and allow the grounds of appeal of the assessee. - ITA No. 5009 And 2010/Mum/2018 - - - Dated:- 21-9-2020 - Shri Shamim Yahya, Accountant Member And Shri Pavan Kumar Gadale, Judicial Member For the Appellant : None For the Respondent : Shri Aktar Ansari, SR. DR ORDER PER PAVAN KUMAR GADALE - JM: These are the appeals filed by the assessee against the separate orders of the Ld. CIT(A)-47, Mumbai, passed u/s 271(1)(c) and 250 of the Act. Since both the appeals have common and identical issue, hence they are clubbed and heard and consolidated order is passed. For the sake of convenience, we shall take up the ITA No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the confirmations to establish the loan transactions and therefore the A.O made addition of ₹ 16,391/-.The A.O found that the assessee was disclosing the rental income of ₹ 36,000/-from a portion of property at 28-B, Camac Street, Kolkata from earlier years but in the present financial year no income was disclosed. The assessee has filed the explanations that no rental income is received from A.Y 2008-09 due to vacancy of premises. The A.O is of the opinion, that the assessee has not provided any evidence or document to establish vacancy of the property therefore estimated the rental income from house property of ₹ 36,000/-and assessed the total income of ₹ 52,391/-and passed assessment order u/s 143(3) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of ₹ 36,000/- in the said financial year. We are on perusal of the assessment order find that the assessee has submitted details of rental income of earlier years and also explained that from the A.Y 2008-09, the property remained vacant and no rental income has been received. But the revenue has applied the fair market value and has made an addition of ₹ 36,000/. We find that any addition in the assessment order cannot be a gate way for automatic levy of penalty. The Ld. CIT(A) has passed a very elaborate order overlooking the facts that the assessee has not received the rental income as per submissions made in the course of assessment and penalty proceedings. We are of the view that the penalty cannot be automatic an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (h) The said deeming provisions are not applicable to the orders passed by the Commissioner of Appeals and the Commissioner. (i) The imposition of penalty is not automatic. (j) Imposition of penalty even if the tax liability is admitted is not automatic. (k) Even if the assessee has not challenged the order of assessment levying tax and interest and has paid tax and interest that by itself would not be sufficient for the authorities either to initiate penalty proceedings or impose penalty, unless it is discernible from the assessment order that, it is on account of such unearthing or enquiry concluded by authorities it has resulted in payment of such tax or such tax liability came to be admitted and if not it would have esca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty could be imposed to the assessee. (s) Taking up of penalty proceedings on one limb and finding the assessee guilty of another limb is bad in law. (t) The penalty proceedings are distinct from the assessment proceedings. The proceedings for imposition of penalty though emanate from proceedings of assessment, it is independent and separate aspect of the proceedings. (u) The findings recorded in the assessment proceedings insofar as concealment of income and furnishing of incorrect particulars would not operate as res judicata in the penalty proceedings. It is open to the assessee to contest the said proceedings on merits. However, the validity of the assessment or reassessment in pursuance of which penalty is levied, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porary lull in the business there are no directors and staff available in the registered office. Further the addition of ₹ 36,000/- is not justifiable as the property remained vacant from earlier years and rental income is not received. The A.O observed that the explanations are not satisfactory and levied a penalty of ₹ 56,264/- u/s 271(1)(c) of the Act and passed order on 27.02.2015. Aggrieved by the order the assessee has filed an appeal with the CIT(A). Whereas the CIT(A) has over looked various facts and has confirmed the penalty and dismissed the appeal. Aggrieved by the order of the CIT(A) the assessee has filed an appeal with the Tribunal. 8. None appeared of behalf of the assessee. We heard the submissions of the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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