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TMI Blog2025 (2) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Assessment Year 2011-12. 2. The solitary ground raised by the Revenue reads as follows: 1) "Whether in the facts and on the circumstances of the case and in law, the Ld. CIT(A) is correct in deleting the penalty levied u/s. 271(1)(c) holding that the issue has been decided in favour of appellant by the Hon'ble ITAT, consequential penalty u/s. 271(1)(c) levied by the Assessing Officer does not survive despite the fact that the decision of Hon'ble ITAT has been challenged and an appeal was filed before Hon'ble Gujarat High Court". 3. Ld. CIT-DR appearing for the Revenue submitted that the present appeal filed by the Revenue only to keep the matter alive, since the Revenue has filed Tax Appeal before Hon'ble High Court of Gujarat aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f orders of the Hon'ble ITAT in the case of the appellant. From the copy of order of the Hon'ble ITAT submitted by the appellant, it is seen that the issue has been decided in favour of the appellant. The addition made by the AO and upheld by the CIT(A) has been deleted by the Hon'ble ITAT in its order in ITA Nos. 253-254/AHD/2020 pronounced on 12/07/2023. The relevant part of the order of the Hon'ble ITAT is reproduced as under: (i) As regards the addition of Rs. 7.25,00,000/-confirmed by the CIT(A), it is held as under: "9.9 On perusal of the above statement of Shri SCS, it is noticed that the fund was involved of the promoter of the company se. M/s Akshar Entertainment Limited in the given case There is no dispute abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessee has not made any sales of the shares of the impugned company. Therefore, in our considered view the addition has been made by the AO which was consequently confirmed by the ld. CIT(A), on wrong assumption of facts. 16.2 It is also pertinent to note that the loss was shown by the assessee on account of valuation of the shares determined as on 31/03/2011, which can be verified from the copy of the ledger placed on record. It is a settled position of law that the closing stock of one year becomes the opening stock of subsequent year meaning thereby there is no effect on the income of the assessee on account of difference in valuation of closing stock except shifting of the profit from one year to another year barring excepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Ltd. Hence, in the absence of necessary details, we do not find any reason to deviate from the findings of the Ld. CIT(A). Accordingly we confirm the addition of Rs. 52 lacs under the provision of section 68 of the Act Hence, the ground of appeal of the assessee is hereby portly allowed." (iii) The appellant against the addition of Rs 52,00,000/-confirmed by the Hon'bie ITAT, as discussed in para 5.1 (iii) above, a Miscellaneous Application was filed by the assessee claiming that the Hon'ble ITAT has inadvertently overlooked documents in respect to the loan received from M/s. GGF Mercantile Pvt Ltd and that the finding was on wrong assumption of facts. After considering the materials again, the Hon'ble ITAT in its order in M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscellaneous Application filed by the assessee is allowed." 5.3. Respectfully following the decision of the Hon'ble ITAT reproduced above, when the very addition on which penalty has been levied u/s 271(1)(c) has been deleted/set-aside for fresh adjudication, the penalty levied u/s. 271(1)(c) also does not survive. Therefore, the penalty levied u/s. 271(1)(c) of the Act of Rs. 2,72,76,410/- is directed to be deleted. The ground of appeal is therefore allowed. 5.1. We do not find any infirmity in the order passed by the Ld. CIT(A) who has duly followed the Co-ordinate Bench order of this Tribunal. As rightly pointed out by the Ld. Counsel for the assessee, there is no Stay Petition filed by the Revenue before the Hon'ble High Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing or enhancing or reducing or cancelling penalty or dropping the proceedings for the imposition of penalty is passed before the order of the Commissioner (Appeals) or the Appellate Tribunal or the High Court or the Supreme Court is received by the Chief Commissioner or the Commissioner or the order of revision under section 263 or section 264 is passed, an order imposing or enhancing or reducing or cancelling penalty or dropping the proceedings for the imposition of penalty may be passed on the basis of assessment as revised by giving effect to such order of the Commissioner (Appeals) or, the Appellate Tribunal or the High Court, or the Supreme Court or order of revision under section 263 or section 264:Provided that no order of impo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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