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TMI Blog2010 (10) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of section 158BFA do not empower the Assessing Officer to impose the penalty in those cases wherein assessment has been completed u/s 158BD of the Act. The learned Assessing Officer has erred and acted illegally in imposing the penalty u/s 158BFA of the Act without jurisdiction and without authority of law. 2. Because it is fully explained that the penalty is imposable on determination of the undisclosed income of the block period and determination of the tax payable on the basis of assessment as per section 158BC (c) of the Act. The learned Assessing Officer has erred and acted illegally in imposing the penalty without determining the income and tax thereon as the assessment had been set aside by the Hon'ble Income Tax Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed the penalty order on 26/4/2007. The assessee carried the matter to the learned CIT (A), who confirmed the penalty levied by the Assessing Officer observing as under: "6. In this case, since the AO has completed penalty proceedings u/s 158BFA after receiving the order of Hon'ble ITAT and only considering the additions which were finally sustained by the ITAT, I think, according to the provisions of section 158BFA ( 3 )(c) , there is no bar or violation of law on the AO in doing so. The submission of the assessee that the Hon'ble Income Tax Appellate tribunal set aside the assessment order vide appeal No. 324/Alld of 2002 dated 31.07.2006 and the fresh assessment has been passed by the learned assessing officer on 14.12.2007 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. CIT [1977] 106 ITR 384 (Cal.). 6. The learned CIT, D.R. in her rival submissions strongly supported the impugned order passed by the learned CIT(A). 7. We have considered the rival submissions and carefully gone through the material available on record. It is noticed that the Assessing Officer passed the assessment order on 14/12/2007 by keeping in view the directions of the ITAT given in order dated 31/07/2006 in I.T.A. No. 324/All/2002 and the penalty order has been passed on 26/04/2007, therefore, when the penalty order was passed, the assessment order was not available with the Assessing Officer. On a similar issue, Hon'ble Calcutta High Court in the case of Nawn Estates ( P. ) Ltd. ( supra ) has held as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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