2016 (7) TMI 177

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....urnment on the ground that the person who is handling the case is out of station. In the earlier occasion vide letter dated 30.6.2015 filed on behalf of the assessee has sought adjournment on the same ground. After giving careful consideration to the adjournment application, we reject the same and decide the appeal ex-parte without the presence of assessee. 3. The facts in brief are that the return of income filed by the assessee on 12.8.2008 declaring total income at Rs. 404/-. The search and seizure action was conducted on 5.3.2009 in the cases of Jai Corp Group of cases and following due process of law and procedure under section 153C, 143(2) and 142(1), the AO made assessment at an income of Rs. 65,77,404/- by making an addition u/s 69....

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....f the Tribunal and the matter is still subjudice before the Hon'ble Jurisdictional High Court and no final outcome has reached. Therefore, he submitted that it will two early to confirm the decision of ld.CIT(A) deleting the penalty. 6. We find from the record that the penalty was levied by the AO u/s 271(1)(c) of the Act for concealment of particulars of income and furnishing inaccurate particulars of income. In the appellate proceedings, the ld.CIT(A) deleted the penalty by observing and holding as under : "3.3 I have considered the submissions made on behalf of the appellant and also perused the materials on record. As held by the Hon'ble Supreme Court in the case of Union of India & ors. v, Dharmendra Textile Processors & ors. 30....

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....dition precedent far the issue of notice . 19. Considering the entire facts and circumstances in the light of the impugned seized documents, we have no hesitation to hold that action taken u/s. 153C of the Act is bad in law . 22. ... The entire dispute revolves around the alleged cash payment amounting to Rs. 43 crores approx. and which has been added u/s. 69C of the Act..... . 23. .. the assessee must have been found to have incurred any expenditure 'to invoke the provisions of Sec. 69C of the Act.However, the allegations made by the lower authorities are not supported by actual cash passing hands. The entire additions are based on the seized documents and no other material has been adverted to and which could conclusively show t....

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....h the assessments and delete the additions on merit as well as on point of law in all other cases also". From perusal of the aforesaid order, it is very clear that the Hon'ble Tribunal has not only quashed the assessments framed u/s, 153C but also deleted the additions made u/s.69C on merits in case of land companies including the appellant. Once the assessment proceeding giving rise to penalty u/s. 271(1)(c) is itself quashed, the very 'foundation for imposition of penalty becomes non-existent and hence the impugned penalty order in respect of such assessment would not survive. Similarly, there would be no justification for sustaining the penalty levied u/s, 271(1)(c) of the Act, once the quantum addition on basis of which penalt....