TMI Blog2022 (6) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... ing due opportunity of being heard to the assessee by order dated 27.03.2018. The very revision order passed under section 263 of the Act by the ld. PCIT dated 27.03.2018 was subject matter in appeal before the Tribunal. Vide order in [ 2022 (5) TMI 1090 - ITAT CHENNAI] the Tribunal upheld the revision order passed under section 263 of the Act. In view of the above, the penalty levied by the Assessing Officer under section 271(1)(c) of Act and confirmed by the ld. CIT(A) cannot be adjudicated in the present penalty appeal. Therefore, we set aside the order passed by the ld. CIT(A) and remit the matter back to the file of the Assessing Officer to take appropriate action after passing the consequential order in pursuance to the order passed by the ld. PCIT under section 263 of the Act dated 27.03.2018. Thus, the ground raised by the assessee is allowed for statistical purposes. - I.T.A. No. 1437/Chny/2017 - - - Dated:- 8-6-2022 - Shri V. Durga Rao, Judicial Member And Shri G. Manjunatha, Accountant Member For the Appellant : Shri S. Sridhar, Advocate For the Respondent : Dr. S. Palani Kumar, CIT ORDER PER V. DURGA RAO,, JUDICIAL MEMBER: This appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer initiated penalty proceedings under section 271(1)(c) of the Act. During the course of penalty proceedings, the assessee filed a letter dated 18.08.2016, wherein, it was stated as under: (a) The company was a wholly owned subsidiary of M/s. Ravilla Aerospace Industries P. Ltd. And are having some factory land and buildings and condemned machinery unfit for usage, situated inside the Coimbatore city corporation limits and the company was a totally defunct company with operation or activities and no serving employees. (b) The assessee company sold the unutilized factory land and building to M/s. LMW Ltd. A widely held, publicly trading BSE listed company during the year 2011-12. All the transactions were accounted in the books of accounts of the assessee company and only the books of accounts were not fully completed and audited. The company had not taken any amount in cash and had not kept away from accounting the receipts as such and hid the fact of sale of land and building in any manner. Had the company done so the company could have been technically said to have concealed the income. (c) When the company was surveyed for having given huge considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has not proved with any supporting evidences and levied penalty of ₹.20,37,853/- under section 271(1)(c) of the Act after distinguishing the case law relied upon by the assessee and by referring to the judgement of the Hon ble Supreme Court in the case of MAK Data P. Ltd. v CIT reported in 38 taxmann.com 448(SC) (2013). 3. Aggrieved, the assessee carried the matter in appeal before the ld. CIT(A). After considering the written submissions filed by the assessee as well as case law relied upon and facts of the case, the ld. CIT(A) confirmed the levy of penalty under section 271(1)(c) of the Act by observing as under: 5. I have considered the written submission and the assessment records. In the case of the assessee, the undisputed fact is that the assessee company had taxable income by way of capital gains arising on sale of factory building and land to M/s. LMW Ltd during the year 2011-12 relevant to Asst. Year 2012-13 and the assessee company is under legal obligation to furnish a return of income as required under Section 139 disclosing such income. However, I find no such return was filed by the assessee under section 139 disclosing the capital gains liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rajesh Chawla Vs CIT 154 Taxman 364 and Hon'ble High Court of Madras in the case of R. Padmanabhan 371 ITR 211. 8. The facts of the case laws quoted by the assessee are not relevant to the assessee's case. In the case of E. Krishnappa quoted by the assessee, the facts are different that the assessee has filed a belated return and to regularize the return filed by the assessee a notice u/s 148 was issued and in response the belated return was pleaded to be treated as return in response to notice u/s 148 and thereafter the Assessing Officer levied penalty. 9. Further in this case, the assessee has not submitted any documentary evidence to prove that the company was planning to approach the department. The return was not filed at all and there was no evidence to prove that the assessee company would have voluntarily filed the return accepting the capital gains but for the survey action. The conduct of the assessee, hence assumed significance in coming forward to disclose the income only after survey and later after issuance of notices u/s 142(1). But for the survey action the entire sale of land by the assessee to M/s. LMW for a consideration of Rs.8.52 Crores woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. PCIT set aside the assessment order passed by the Assessing Officer dated 24.03.2016 and directed him to examine the claim made under section 54G of the Act and redo the assessment afresh in accordance with law after giving due opportunity of being heard to the assessee by order dated 27.03.2018. 6.2 The very revision order passed under section 263 of the Act by the ld. PCIT dated 27.03.2018 was subject matter in appeal before the Tribunal. Vide order in I.T.A. No. 1837/Chny/2018 dated 13.05.2022, the Tribunal upheld the revision order passed under section 263 of the Act. In view of the above, the penalty levied by the Assessing Officer under section 271(1)(c) of Act and confirmed by the ld. CIT(A) cannot be adjudicated in the present penalty appeal. Therefore, we set aside the order passed by the ld. CIT(A) and remit the matter back to the file of the Assessing Officer to take appropriate action after passing the consequential order in pursuance to the order passed by the ld. PCIT under section 263 of the Act dated 27.03.2018. Thus, the ground raised by the assessee is allowed for statistical purposes. 7. In the result, the appeal filed by the assessee is allowed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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