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 ITO vs. Vikram A. Pradhan (ITAT Mumbai)

ITO, Ward 33(3), New Delhi. Vs. Vikas Grover, Cottage No.14, West Patel Nagar, New Delhi
September, 15th 2015
          IN THE INCOME TAX APPELLATE TRIBUNAL
               DELHI BENCH `SMC', NEW DELHI
       BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER
                         ITA No.2147/Del/2014
                       Assessment Year : 2008-09
ITO,                              Vs Vikas Grover,
Ward 33(3),                          Cottage No.14,
New Delhi.                           West Patel Nagar,
                                     New Delhi
                                     PAN: AKTPG1762E

     (APPELLANT)                        (RESPONDENT)

                 Assessee by : None
                 Revenue by : Shri Sarbhjit Kumar, Sr. DR

Date of Hearing : 14.09.2015   Date of Pronouncement : 14.09.2015


                                ORDER


     This is an appeal by the department against the order
dated 13.1.2014 of ld. CIT(A)-XXVI, New Delhi.

2.   The only grievance of the Department in this appeal
relates to the deletion of penalty of Rs.8,13,548/- levied by the
AO u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter
referred to as `the Act').
                                       2                       ITA No.2147/Del/2014
                                                                       Vikas Grover




3.   During the course of hearing, nobody was present on
behalf of the assessee, nor any adjournment was sought.                         I,
therefore, proceeded ex parte qua the assessee and the appeal
is decided on merits, after hearing the ld. DR.

4.   In the present case, it is noticed that the AO levied the
penalty of Rs.8,13,548/- on the basis that an addition of
Rs.24,52,100 was made.              The ld.CIT(A) deleted the said
penalty by observing that the addition of Rs.24,52,100/- was
deleted and as such there remained no addition, no penalty was
leviable.


5.   During the course of hearing, the ld. DR could not
controvert the findings given by the ld. CIT(A). In that view
of the matter, I am of the view that the penalty levied by the
AO u/s 271(1)(c) of the Act was rightly deleted by the
ld.CIT(A).      When the addition, on the basis of which the
penalty is levied itself is deleted, then, the penalty u/s
271(1)(c) does not survive as has been held by the Hon'ble
Supreme Court in the case of K.C. Builders and Another vs.
ACIT reported at (2004 265 ITR 562 (SC), as under:-




     "Where the additions made in the assessment order on the basis of
     which penalty for concealment is levied, are deleted, there remains no
     basis at all for levying penalty for concealment and, therefore, in such
                                          3                       ITA No.2147/Del/2014
                                                                          Vikas Grover

        a case no penalty can survive and the penalty is liable to be cancelled.
        Ordinarily, penalty cannot stand if the assessment itself is set aside.


7.      Therefore, by keeping in view the ratio laid down by the Hon'ble

Supreme Court in the aforesaid case, I do not see any merit in this appeal

of the department.


8.       In the result, the appeal filed by the department is dismissed.
 (Order Pronounced in the Court on 14/09/2015)
                                                                 Sd/-
                                                            (N. K. Saini)
                                                         Accountant Member
Dated: 14/09/2015
dk
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5.DR: ITAT
                                                         ASSISTANT REGISTRAR

 
 
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