IN THE INCOME TAX APPELLATE TRIBUNAL,
MUMBAI BENCH "G", MUMBAI
BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND
SHRI SANJAY GARG, JUDICIAL MEMBER
Assessment Year: 2007-08
ACIT, Cent. Cir.25, Shri Yogesh Popatlal Thakkar,
Room No.404, 4th Floor, 41, Jeswani House,
Aayakar Bhavan, Vs. M.G. Road,
Mumbai 400 020 Panvel,
Navi Mumbai 410 206
PAN: AAPPT 1825P
Assessee by : Shri Manish Sanghavi, A.R.
Revenue by : Shri R.N. D'Souza, D.R.
Date of Hearing : 22.10.2014
Date of Pronouncement : 17.12.2014
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the Revenue against the order
dated 30.01.2012 of the Commissioner of Income Tax (Appeals) [(hereinafter
referred to as CIT(A)]. The Revenue has agitated the action of the Ld. CIT(A)
in reducing/directing the Assessing Officer (hereinafter referred to as the AO)
to levy penalty under section 271(1)(c) of the Income Tax Act.
2. At the outset, the Ld. AR for the assessee has brought our attention to
the order of the Tribunal in the own case of the assessee passed in ITA
Nos.3372 & Ors./M/2010 decided on 09.04.2013 and submitted that the issues
in relation to which the additions/disallowances were made and consequent
penalty was levied by the AO have been set aside by the Tribunal to the file of
2 ITA No.2599/M/2012
Shri Yogesh Popatlal Thakkar
the AO vide the said order dated 09.04.2013 for decision afresh. He has
therefore submitted that since the order of the AO relating to issues upon
which the additions/disallowances were made has been set aside by the
Tribunal, hence the consequential penalty cannot be sustained.
The Ld. D.R., after going through the order of the Tribunal dated 09.04.2013,
has also agreed that the matter relating to quantum additions has been set aside
by the Tribunal to the file of the AO for decision afresh.
3. Since the order of the AO on the issues in relation to which the quantum
additions were made has already been set aside by the Tribunal for decision
afresh, hence the very basis upon which the consequential penalty was levied
has ceased to exist. Therefore, the consequential penalty is not sustainable in
the eyes of law and the same is accordingly ordered to be deleted.
3.1 However, before parting with the order it is clarified that if the AO will
find during the fresh assessment proceedings that the case of the assessee is
also fit for levy of penalty in terms of the fresh assessment order, he will be at
liberty to initiate fresh penalty proceedings accordingly.
4. In the result, the appeal of the Revenue is hereby dismissed.
Order pronounced in the open court on 17.12.2014.
(B.R. Baskaran) (Sanjay Garg)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Dated: 17.12.2014.
* Kishore, Sr. P.S.
3 ITA No.2599/M/2012
Shri Yogesh Popatlal Thakkar
Copy to: The Appellant
The CIT, Concerned, Mumbai
The CIT (A) Concerned, Mumbai
The DR Concerned Bench
//True Copy// [
Dy/Asstt. Registrar, ITAT, Mumbai.