TMI Blog2021 (4) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... - ITAT DELHI] -Thus, the addition upon which the penalty is imposed no longer sustains and hence, the penalty also does not survive. Hence, the appeal of the assessee is allowed. - I.T.A. No. 6039/DEL/2017 - - - Dated:- 20-4-2021 - SHRI R. K. PANDA ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE , JUDICIAL MEMBER Appellant by : Dr. Rakesh Gupta , Adv Respondent by : Sh. Mahesh Thakur , Sr. DR ORDER PER SUCHITRA KAMBLE, JM This appeal is filed by the assessee against order dated 25/07/2017 passed by CIT(A), Meerut for assessment year 2008-09. 2. The grounds of appeal are as under:- 1. That having regard to the facts and circumstances of the case, Ld. Pr.CIT has erred in law and on fact in imposing penalty u/s 271(l)(c) of ₹ 33,62,420/- i.e. @ 200% and that too without assuming jurisdiction as per law and the impugned penalty order being illegal and void ab-initio and without considering the submissions of assessee and without observing the principles of natural justice. 2. That in any case and in any view of the matter, action of Ld. Pr.CIT in imposing penalty of ₹ 33,62,420/- u/s 271(l)(c) and that too @ 200%, is bad in law and agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer on 28/3/2014 on total income of ₹ 95,10,830/-. Penalty notice u/s 271(1)(c) was also issued on 18/3/2013. In the meanwhile, the assessee went in appeal before the Tribunal against the order u/s 263 and the Tribunal vide order dated 18/11/2016 in ITA No. 2055/Del/2013 dismissed the appeal of the assessee. Thus, the addition of ₹ 49,46,196/- was also confirmed which was made by the CIT u/s 263. The show cause notice u/s 271(1)(c) was again issued on 17/2/2017 requiring it to show cause as to why an order imposing a penalty upon the assessee should not be passed, but the specific limb was not struck off by the Revenue Authorities. Vide order dated 25/7/2017, the Commissioner of Income Tax imposing penalty of ₹ 33,62,420/- equal to 200% thereby held that the assessee has concealed its income and furnish inaccurate particulars of income. 4. Being aggrieved by the penalty order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee. 5. The Ld. AR submitted that the additional grounds are raised as a matter of abundant caution though all grounds are covered in main appeal memo. The penalty @ 200% u/s 271(l)(c) was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th reference to which impugned penalty was imposed vide order dated 17.12.2019 in assessee s own case bearing ITA No. 2504/Del/2016 passed against the order u/s 263/143(3), deleting the addition of ₹ 49,46,196/- . Even on merits penalty is not imposable as income has been estimated at 5%. The Ld. AR relied upon the decision of Hon ble Apex Court in case of CIT vs. Reliance Petroproducts (P) Ltd., (2010) 322 ITR 0158 (SC). Without prejudice to above, the Ld. AR submitted that there is no reason furnished for imposing penalty of 200%. 6. The Ld. DR relied upon the penalty order and submitted that the Commissioner of Income Tax has rightly imposed penalty as per the provisions of Section 271(1)(c). The Ld. DR further submitted that the penalty order with respect to addition of ₹ 49,46,196/- was made on account of wrong claim of loss on sale of plant and machinery to the total income of the assessee vide order u/s 263 dated 18.03.2013 issued by the CIT. The said addition was sustained by the Tribunal vide order dated 18.11.2016 in ITA No. 2055/Del/2013. Subsequently to the said order of the Tribunal, penalty order dated 25.07.2017 was passed by the CIT imposing penalty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon ble High Court in case of Odeon Builders Pvt. Ltd. (supra) is not relevant as the facts are different. Thus, the Ld. DR opposed the additional grounds as well as prayed that the present appeal be dismissed. 7. We have heard both the parties and perused the material available on record. It is pertinent to note that the actual limb of Section 271(1)(c) is not mentioned by the Assessing Officer and from the perusal of the penalty order it can be seen that the reasoning and satisfaction imposing penalty is not as per the provisions of penalty under Income Tax Statute. As per the Ld. AR on merit as well the penalty cannot be levied and when we have seen the order of the Tribunal confirming the addition made by the Commissioner of Income Tax, it appears that the same does not tantamount for imposing penalty as the assessee was under bonafide belief while not quantifying the said amount in the income of the assessee. In fact, the Tribunal in quantum has deleted the addition with reference to which impugned penalty was imposed vide order dated 17.12.2019 in assessee s own case bearing ITA No. 2504/Del/2016 passed against the order u/s 263/143(3), deleting the addition of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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