2019 (2) TMI 1584

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..... annot survive. Accordingly, we set aside the order of the lower authorities and cancel the penalty levied under section 158BFA(2) of the Act. All the grounds of the appeal are accordingly allowed.
SH. BHAVNESH SAINI, JUDICIAL MEMBER AND SH. O.P. KANT, ACCOUNTANT MEMBER For The Appellant : Sh. Salil Aggarwal, Adv. For The Respondent : Ms. Paramita Tripathi, CIT (DR) ORDER PER O.P. KANT, A.M.: This appeal by the assessee is directed against order dated 05/03/2015 passed by the Ld. Commissioner of Income-tax (Appeals)-29, New Delhi, [in short 'the Ld. CIT(A)'] for the block period from 01/04/1995 to 22/08/2001 in relation to penalty imposed under section 158BFA of the Income-tax Act, 1961 (in short 'the Act'), amounting to ₹ 23 .....

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..... to appreciate the basic fact that all the additions made under quantum proceedings amounting to ₹ 38,32,128/- were based on conjectures and surmises unsupported by any valid material and in any case said disallowance if at all is unwarranted and could not have been made in the hands of the assessee and is thus, contrary to material available on record, as was also explained to the learned CIT (A) during penalty proceedings, which submission of the assessee - appellant was arbitrarily brushed aside and as such the penalty imposed under section 158 BFA should be deleted. 3. That the learned Commissioner of Income Tax (Appeals) has further erred in law and on facts in sustaining the aforesaid penalty in the hands of assessee company, .....

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..... roceedings, the ex parte order was recalled and the Tribunal in order dated 11.08.2017 in IT(SS)A No. 307/Del/2004 has held that in absence of search warrant against the assessee, it was beyond jurisdiction of the Assessing Officer to complete assessment under section 158BC of the Act and hence the assessment was held as void-ab-initio. He submitted that in view of no assessment, the penalty levied cannot survive. 5. The Ld. DR, on the other hand, could not controvert the factual position. 6. We have heard the rival submissions and perused the relevant material on record including the order of the Tribunal (supra). The Tribunal (supra) in para 4, has held as under: "4. Thus, now the admitted fact of the present case is that search warra .....

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