Jinesh Beneficiary Trust, Kanpur vs Assessee

This is assessee's appeal directed against the order passed by learned CIT(A)-II, Kanpur dated 12/08/2013 for the assessment year 1999-2000.

2. In this appeal, the assessee has raised the following grounds:

"01. Because the CIT(Appeals) has erred on facts and in law in passing the ex-parte order in respect of the appeal filed by the assessee against the order of the Assessing Officer, passed u/s. 271(1)(c) of the I.T. Act, 1961 upholding the levy of penalty of Rs.1,00,000/-.

02. Because no notice of hearing dated 09.12.2013 and 24.05.2013 has been served on the assessee, the CIT(Appeals) was not justified in passing the ex-parte order, upholding the levy of penalty of Rs.1,00,000/- imposed u/s 271(1)(c) of the I.T. Act, 1961.

2 03. Because on a proper consideration of facts and circumstances of the case, there being neither any concealment, nor furnishing of inaccurate particulars, the CIT(Appeals) has erred on facts and in law in upholding the levy of penalty of Rs.1,00,000/- u/s 271(1)(c) of the Act, imposed by the Assessing Officer.

04. Because on a proper consideration of facts and circumstances of the case, it would be found that the provisions of section 271(1)(c) are not applicable to the instant case."

3. It was submitted by Learned A.R. of the assessee that in quantum proceedings, the matter is set aside by the Tribunal to the file of CIT(A) in I.T.A. No.621/Lkw/08 dated 14/08/2009. He submitted copy of the Tribunal decision. He also submitted that no consequential order has been passed by CIT(A) till date as has been directed by the Tribunal. He submitted that under these facts, penalty is not justified.

4. Learned D. R. of the Revenue supported the orders of the authorities below.

5. We have considered the rival submissions. We find that while deciding the issue in course of quantum proceedings, the Tribunal has restored back the matter to the file of CIT(A) for a fresh decision by way of passing a speaking order. It is the submission of the assessee that till date, consequential order has not been passed by learned CIT(A). Learned D. R. could not show that any consequential order was passed by CIT(A) as has been directed by the Tribunal in quantum proceedings. Until and unless the assessment in quantum proceedings is decided by learned CIT(A), the penalty issue cannot be decided. Therefore, we feel that in the facts of the present case, the matter should go back to Assessing Officer for fresh decision in the light of the final decision in quantum proceedings. Therefore, we set aside the order of CIT(A) and restore the matter to 3

Assessing Officer. The Assessing Officer is directed to decide the issue afresh after final order of CIT(A) in quantum proceedings. The Assessing Officer should obtain the status report of the appeal from the concerned CIT(A) and if the order is already passed by CIT(A), the Assessing Officer should obtain a copy of the order of CIT(A) and if the order is still not passed by CIT (A), a copy of this order may be forwarded to CIT (A) with a request to pass order in quantum proceedings within 3 months from the receipt of this order and after obtaining the copy of that order in quantum proceedings, the A.O. should pass necessary order as per law after giving sufficient opportunity to the assessee.

6. In the result, the appeal of the assessee stands allowed for statistical purposes.

(Order was pronounced in the open court on the date mentioned on the caption page)

Sd/. Sd/.

(SUNIL KUMAR YADAV) ( A. K. GARODIA ) Judicial Member Accountant Member

Dated:22/06/2015 *C.L.Singh

Copy of the order forwarded to : 1.The Appellant 2.The Respondent. 3.Concerned CIT 4.The CIT(A) 5.D.R., I.T.A.T., Lucknow Asstt. Registrar