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Income Tax Appellate Tribunal - Delhi

Renuka Traders Pvt. Ltd., New Delhi vs Dcit, New Delhi on 14 August, 2017

          IN THE INCOME TAX APPELLATE TRIBUNAL
                DELHI BENCH 'F', NEW DELHI
        Before Sh. N. K. Saini, AM and Sh. Bhavnesh Saini, JM
              ITA No. 1813/Del/2015 : Asstt. Year : 2009-10
Renuka Traders Pvt. Ltd.,        Vs Deputy Commissioner of Income
B-33, Shivalik, Malvia Nagar,       Tax, Central Circle-17,
New Delhi-110017                    New Delhi
(APPELLANT)                         (RESPONDENT)
PAN No. AACCR7713C

                  Assessee by : Sh. U. N. Marwah, FCA
                  Revenue by : Sh. Atiq Ahmad, Sr. DR
Date of Hearing : 10.08.2017     Date of Pronouncement : 14.08.2017

                                ORDER

Per N. K. Saini, AM:

This is an appeal by the assessee against the order dated 05.01.2015 of ld. CIT(A)-XXVI, New Delhi.

2. The only grievance of the assessee in this appeal relates to the confirmation of penalty of Rs.14,21,400/- levied by the AO u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act).

3. During the course of hearing the ld. Counsel for the assessee at the very outset stated that the addition of Rs.46,00,000/- on the basis of which this penalty was levied has been deleted of this Bench of the ITAT, New Delhi in ITA 2 ITA No. 1813/Del/2015 Renuka Tradersf Pvt. Ltd.

No. 2464/Del/2013 for the assessment year 2009-10 vide order dated 13.06.2016 (copy of the said order was furnished which is placed on record).

4. In his rival submissions the ld. DR although supported the orders of the authorities below but could not controvert the aforesaid contention of the ld. Counsel for the assessee.

5. We have considered the submissions of both the parties and perused the material available on the record. In the present case, it is noticed that the AO initiated the penalty proceedings u/s 271(1)(c) of the Act on the basis of the addition of Rs.46,00,000/- made on account of unexplained cash credit which is evident from the assessment order dated 30.12.2011. The said addition was confirmed by the ld. CIT(A) and thereafter the assessee filed an appeal in ITA No. 2464/Del/2013 before the ITAT Delhi Bench 'F', New Delhi wherein vide order dated 13.06.2016, this addition was deleted. In the present case, it is an admitted fact that the addition on the basis of which the impugned penalty u/s 271(1)(c) of the Act was levied does not exist. Therefore, the penalty levied by the AO and sustained by the ld. CIT(A) is not exigible.

Renuka Tradersf Pvt. Ltd.

6. On a similar issue the Hon'ble Supreme Court in the case of K. C. Builders & Others Vs ACIT (2004) 265 ITR 562 wherein it has been held 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 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. In view of the above, the impugned penalty levied by the AO and sustained by the ld. CIT(A) is deleted.

8. In the result, appeal of the assessee is allowed. (Order Pronounced in the Court on 14/08/2017) Sd/- Sd/-

  (Bhavnesh Saini)                           (N. K. Saini)
JUDICIAL MEMBER                          ACCOUNTANT MEMBER
Dated: 14/08/2017
*Subodh*
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5.DR: ITAT
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