Penalty under sec 271(1)( c ) can be delete subject to the satisfaction of the CIT that the basis of levy does not survive

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCH “G” New Delhi

BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER

AND

SHRI C.M. GARG, JUDICIAL MEMBER

ITA No. 3747/Del/2011

A.Y. 2005-06

Asstt. Commissioner of Income Tax,

Central Circle, Meerut

(Appellant)

vs.

M/s Superior Exim (P) Ltd.,

25, Bazar Lane, Bengali Market,

New Delhi

(PAN: AAOCS4361D)

(Respondent)

AND

I.T.A. No. 3748/Del/2011

A.Y.: 2005-06

Asstt. Commissioner of Income Tax,

Central Circle,

Meerut

(Appellant)

vs.

Sh. Sanjeev Aggarwal,

16/71-A, Civil Lines, Kanpur

(PAN: ABNOPA4675N)

 (Respondent)

Assessee by: Sh. Somil Aggarwal, Adv.

Department by: Smt. S. Mohanty, D.R.

ORDER

PER SHAMIM YAHYA: AM

These appeals by the Revenue are directed against the respective orders of the Ld. Commissioner of Income Tax (Appeals) in the case of the separate assessees for the assessment year 2005-06.

Since the issue is connected and the appeals heard together, hence, these are being disposed off by this common order.

2. In both the cases the issue raised is that Ld. Commissioner of Income Tax (Appeals) erred in deleting the levy of penalty u/s. 271(1)(c) of the IT Act.

3. Ld. counsel of the assessee submitted before us that in quantum appeal the tribunal has deleted the addition, hence, he pleaded that the basis of levy of penalty does not survive.

4. Ld. Departmental Representative could not controvert these submissions.

5. We have carefully considered the issue and perused the records. We find that this tribunal in ITA No. 1268/Del/2009 in the case of Sh. Sanjeev Kumar Aggarwal vs. ACIT and ITA No. 1269/Del/2009 in the case of M/s Superior Exim (P) Ltd. vs. ACIT vide common order dated 22.10.2010 had deleted the addition made in the case of both the assessees. In this view of the matter, we agree with the ld. Counsel of the assessee that the basis of levy of penalty u/s. 271(1)(c) does not survive. Accordingly, we do not find any infirmity in the order of the Ld. Commissioner of Income Tax (Appeals) in deleting the levy of penalty.

6. In the result, both the appeals filed by the Revenue stand dismissed.

Order pronounced in the Open Court on 12/4/2012.

                                                         Sd/-                                   Sd/-

                                                [C.M. GARG]               [SHAMIM YAHYA]

                                         JUDICIAL MEMBER     ACCOUNTANT MEMBER

Date 12/4/2012

SRB

Copy forwarded to: -

1. Appellant

2. Respondent

3. CIT

4. CIT (A)

5. DR, ITAT

TRUE COPY

By Order,

Assistant Registrar, ITAT, Delhi Benches