TMI Blog2016 (2) TMI 1373X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly, the order of learned CIT u/s 263 of the Act was set aside by the Tribunal and therefore, now the surviving order is the original assessment order passed by the Assessing Officer u/s 143(3) on 08/10/2009 HELD THAT:- As per the penalty order passed u/s 271D on 27/11/2012, we find that the same is on the basis of fresh assessment order passed by the Assessing Officer u/s 144/263 on 28/12/2011, which does not survive because the order of learned CIT u/s 263 was set aside by the Tribunal and therefore, the consequential order of the Assessing Officer u/s 144/263 does not survive. It is also seen that the notice u/s 271D was issued on 11/05/2012 and 12/10/2012 and the order u/s 271D was passed on 27/11/2012. As decided in Baldev Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order passed by learned CIT(A)-I, Lucknow dated 06/12/2013 for the assessment year 2007-08. 2. In this appeal the assessee has raised the following grounds: 1. That the levy of penalty u/s 271d of the Income Tax Act, 1961 is beyond jurisdiction and untenable in law. 2. That the penalty order is barred by limitation and is liable to cancelled. 3. That no cause of action arose to levy penalty as the assessment order, which was the foundation of the penalty proceedings was not in existence at the time when such penalty order was passed. 4. That the order passed u/s 263 of the Income Tax Act, 1961 giving rise to assessment order dated 28.12.2011 was set aside by Hon'ble ITAT Lucknow vide order dated 18.01.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s expediency. 11. That the penalty is against facts and law. 3. It was submitted by Learned A. R. of the assessee that the present issue is squarely covered in favour of the assessee by the Tribunal order in the case of Baldev Singh vs. Addl. CIT in I.T.A. No.1125 1126/Chd/2011 dated 28/02/2012. He submitted a copy of this Tribunal order. 4. Learned D. R. of the Revenue supported the orders of the authorities below. 5. We have considered the rival submissions. We find that the only issue in dispute in the present case is regarding imposition of penalty by the Assessing Officer u/s 271D of the Act. The case of the assessee is that the original assessment order was passed by the Assessing Officer u/s 143(3) on 08/10/2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the captioned assessment year, penalty proceedings u/s 271D or 271E can be initiated. It was held by the Tribunal in this case that the penalty proceedings in assessment year 2005-06 u/s 271D and 271E were initiated while completing the assessment relating to assessment year 2007-08 and therefore, there is no merit in the said initiation of penalty proceedings u/s 271D and 271E of the Act relating to assessment year 2005-06. The Tribunal has referred to a judgment of Hon'ble Punjab Haryana High Court rendered in the case of CIT vs. Manohar Lal Thakral in I.T.A. No.812 of 2010 dated 14/01/2011. In this case, the question before Hon'ble High Court was as to whether the initiation of proceedings u/.s 271E were legal or illegal as n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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