TMI Blog2022 (4) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... that when the very defect is quashed by the Ld.CIT(A) in the first round, nothing survives for penalty on the remainder amount. When this was pointed out to the ld.Sr.DR, he could not controvert the above stated facet situation. As the issue is clear in the first round of appeal that the Ld.CIT(A) has deleted the penalty and Revenue is not in appeal against the order of the Ld.CIT(A) and hence, that has become final. However, the penalty levied in the second round will not survive, because the very case is jurisdictional issue goes to the root of the matter, once root is taken out, nothing survives. Hence, we deleted the penalty and allow the appeal filed by the assessee. - ITA No. 50/Chny/2018 - - - Dated:- 28-3-2022 - SHRI MAHAVIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A)-4 dated 14.10.2015, confirmed the addition of cash deposit added by the AO u/s.68 of the Act at ₹ 33,25,000/-. As regards to addition of unexplained investment in purchase of immovable property u/s.69B of the Act, the Ld.CIT(A) restricted the addition at ₹ 5,00,000/- as against additions made by the AO ₹ 10,98,274/-. The assessee carried this matter before the ITAT and in the meantime, the AO started the penalty proceedings and levied the penalty u/s.27(1)(c) of the Act vide order No.AFWPK4207L/271(1)(C)/2015-16 dated 20.11.2015 on the tax sought evaded on tax deposits amounting to ₹ 3,48,000/- and unexplained investment made in the purchase of house property at ₹ 5,00,000/-. Therefore, the AO levied the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer which is further sustained by the Id. CIT(A). Therefore, we hereby confirm the addition of ₹ 10,50,000/- on account of addition made U/s. 68 of the Act and direct the Id. Assessing Officer to delete the balance amount. 3. The Tribunal as regards to addition of unexplained investment made by the AO, confirmed by the Ld.CIT(A) at ₹ 5 lakhs was retained as it is and observed in Para No.6, which reads as under: 6. During the course of the assessment proceedings, the id. Assessing Officer on examination of the details of the immovable properties purchased by the assessee made an addition of ₹ 10,98,274/- invoking the provisions of section 69 of the Act as unexplained investment. On appeal, the Id. CIT(A) examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount of penalty has been imposed on the amount of tax sought to be evaded in respect of the additional income of ₹ 3, 48, 000/- and ₹ 5,00, 000/-. The AO is directed to verify and reconcile the discrepancy in the amount of penalty imposed by him in the original penalty order. In view of the decision of the Hon'ble Tribunal, the A.O. is directed re-calculate the amount of penalty on the sum of tax sought to be evaded. The AO is also directed to give credit of penalty amount paid by the appellant earlier. 5. Now before us, the Ld.Counsel for the assessee stated that the primary defect in the notice i.e. the jurisdictional issue that the AO while initiating penalty proceedings has not scored-off under which limb the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon the decision of the Division Bench of the High Court of Karnataka in C.I.T. Vs. Manjunatha Cotton and Ginning Factory [reported in (2013) 359 ITR 565]. The Division Bench after analysing the subject in an elaborate manner and relating to several decisions of the Hon ble Supreme Court held that merely because the assessee agreed for addition and accordingly, assessment order was passed on the basis of addition and when the assessee paid the tax and the interest thereof in the absence of any material on record to show the concealment of income, it cannot be inferred that the said addition is on account of concealment, so as to levy penalty under Section 271(1)(c) of the Act. 5. We find no error in the order passed by the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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