Ashwinbhai H. Patel, Surat vs Assessee

This appeal is directed against the penalty order dated 30-03-2010 passed under section 271(1)(c) wherein penalty of Rs. 1,23,290/- was levied by the AO for A.Y. 2005-06.

I.T.A No. 2430/Ahd/2011 A.Y. 2005-06 Page No 2 Shri Ashwin H. Patel vs. ACIT

2. On the date of hearing none appeared on behalf of the Assessee but the ld. AR had filed written submissions. We therefore proceed to decide the matter ex parte qua the Assessee on the basis of material on record and the written submissions.

3. In the present case penalty of Rs. 1,23,290/- was levied u/s. 271(1)(c) by the AO vide order dated 30/03/2010 on the addition of account of disallowance of expenditure (Rs. 5,388/-) and bogus purchase of Rs. 3,03,746/-. In the written submissions submitted before us, Assessee has submitted that in the quantum proceedings against the order of Ld. CIT(A) dated 30/01/2009 for A.Y. 2005-06, Assessee has preferred appeal before Hon'ble Tribunal. Hon'ble Tribunal in ITA No. 767/Ahd/2009 order dated 12/08/2011 allowed the appeal by deleting the additions. It was therefore submitted that since the addition on which penalty has been levied itself has been deleted by the Hon'ble Tribunal, the penalty levied u/s. 271(1)(c) does not survive and therefore the penalty needs to be deleted. The Ld DR relied on the order of A.O. and Ld. CIT(A).

4. We have heard the Ld. DR and perused the material on record. We find that on the quantum additions made while framing the assessment under section 143(3) order dated 17/12/2007, AO vide penalty order dated 30/03/2010 levied penalty for Rs. 1,23,290/- under section 271(1)(c) of the Act. Against the addition made by AO, Assessee preferred appeal before Tribunal. Tribunal vide order dated 12/08/2011 decided the appeal in favour of he Assessee and deleted the additions. Since the addition on which the penalty u/s. 271(1)(c) was levied itself has been deleted, we are of the view that no penalty on the aforesaid disallowance can be made. We thus direct its deletion. Thus, this ground is allowed.

I.T.A No. 2430/Ahd/2011 A.Y. 2005-06 Page No 3 Shri Ashwin H. Patel vs. ACIT

5. In the result, the appeal of Assessee is allowed.

Order pronounced in open court on the date mentioned hereinabove at caption page

Sd/- Sd/-

(G.C. GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER Ahmedabad : Dated 09/01/2015 ak

आदे श कȧ ूितिलǒप अमेǒषत / Copy of Order Forwarded to:-

1. Assessee

2. Revenue

3. Concerned CIT

4. CIT (A)

5. DR, ITAT, Ahmedabad

6. Guard file.

By order/आदे श से,

उप/सहायक पंजीकार आयकर अपीलीय अिधकरण, अहमदाबाद