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11.15 Aggrieved with the finding of the Ld. CIT(A) of deleting the penalty, the Revenue is in appeal before the Tribunal raising the grounds as reproduced above.

ITA No.2044 & 2045/Del/2014;

12. Before us, the Ld. counsel of the assessee also filed application under rule 27 of the ITAT Rules, 1963 submitting that in the instant case penalty could have been levied under section 271AAA of the Act and not under section 271(1)(c) as only done by the Assessing Officer and, thus, order of the Ld. CIT(A) cancelling the penalty imposed under section 271(1)(c) might be sustained albeit on the ground of legal submission that in the specified year the penalty under section 271AAA could be levied.

13. The Ld. DR opposed admission of the application under Rule 27 of the ITAT Rules on the ground that under Rule 27, the assessee may support the order appeal against on any of the grounds decided against him. According to him, in the present case, no ground is decided against the assessee and therefore assessee is not entitled to file application under Rule 27 of the ITAT Rules.

14. We have heard the submission of the both the parties on the issue of application under Rule 27 of the ITAT rules. The rule 27 of the ITAT Rules read as under:

ITA No.2044 & 2045/Del/2014;

But in the present case the Ld. CIT(A) has decided all the grounds in favour of the assessee, thus, we do not find any reason for entertaining the application of the assessee under rule 27 of the ITAT Rules and accordingly, said application was rejected and parties were directed to argue the appeal of the Revenue.

16. The Ld. DR supporting the grounds raised that Ld. CIT(A) was not justified in cancelling the penalty under section 271(1)(c) of the Act invoking Explanation 5A. According to him, penalty under 271(1)(c) of the Act could be levied in case of additions made other than the undisclosed income surrendered during the course of statement under section 132(4) of the Act. The Ld. AR submitted that in view of the deeming provisions of Explanation 5A, the assessee is liable for the penalty even though the said income has been included in the return filed in response to notice under section 153A of the Act.

is upheld. The grounds of the appeal of the Revenue are accordingly dismissed.

28. In the result, the appeal filed by the Revenue as well as the application filed under Rule 27 of the ITAT Rules by the assessee are dismissed.

Order is pronounced in the open court on 20th November, 2018.

              Sd/-                             Sd/-
          KULDIP SINGH                      O.P. KANT
        JUDICIAL MEMBER                ACCOUNTANT MEMBER

Dated: 20th November, 2018.
RK/-(D.T.D.)
Copy forwarded to:
1.     Appellant
2.     Respondent
3.     CIT
4.     CIT(A)
5.     DR


                                              Asst. Registrar, ITAT, New Delhi