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TMI Blog2016 (11) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... xpenses. In view of the above discussion, we do not find any merit for the penalty so imposed by AO.- Decided against revenue X X X X Extracts X X X X X X X X Extracts X X X X ..... n-genuine and bogus. Our attention was invited to the order passed by Tribunal in the first round, wherein matter was restored back to the file of AO vide order dated 25-4-2012 and it was contended that if the evidences were sufficient to confirm the disallowance in the original proceedings, the Hon'ble IT AT vide its order dated 25.04.2012 would not have set aside the matter to the AO for further examination. Hence, if enough evidence was not available to the satisfaction of the ITAT for confirming the quantum order, penalty under section 271(1)(c) of the Act cannot be confirmed based on the same material available on record. The above contention. is supported by the fact that no new facts were found nor any new line of enquiry was don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant company has furnished all the relevant bank accounts of the payee parties during the course of the assessment proceedings, which remains unexamined by the learned A.O. before making the said disallowance. Relevant extract of the said order is reproduced hereunder ... 19. After hearing both the sides and perusing the material available on record and in absence of any distinguishing feature brought on record by the parties, and keeping in view of our findings recorded in paras 11 to 13 of this order, we set aside the issue to the file of the A.D. to decide the same afresh in the light of our above observations mentioned therein and according to law after providing reasonable opportunity of being heard to the appellant. The ground tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the file of the AO. and accordingly we set aside the orders passed by the Revenue Authorities on this account and send back the matter to the file of the AO. to decide the same afresh in the light of our observations hereinabove and in accordance with law after providing reasonable opportunity of being heard to the appellant. The ground taken by the appellant is, therefore, partly allowed for statistical." It is clear from the above order of ITAT that the matter has been restored back to the file of AO with the clear direction that the bank statements and other issues, which remained unobserved during the course of assessment proceedings and required fresh adjudication, be properly examined again by the learned AO before passing any judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been paid. The above aspects make the levy of penalty unjust and liable to be quashed. Merely on the plea that payee party have not replied to the queries made after a period of 10 years or more, cannot be made a reason to hold that transaction was not genuine. There is no positive evidence relied on by the A.O. to make the disallowance. Reliance has been placed on the judgment pronounced by the Hon'ble Supreme Court of India in the case of Commissioner Of Income-Tax, Orissa vs Orissa Corporation (P) Ltd on 19 March, 1986 wherein the Hon'ble Supreme Court relied on its decision in the case of Messrs. Lalchand Bhagat Ambica Ram vs The Commissioner Of Income-Tax, Bihar and Orissa [37 ITR 288]. Relevant extract the said judgement r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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