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TMI Blog2020 (12) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of assessee. - Shri George George K, JM And Shri B.R.Baskaran, AM For the Appellant : Smt.Pratibha R., Advocate For the Respondent : Sri.Pradeep Kumar, CIT-DR ORDER PER GEORGE GEORGE K, JM This appeal at the instance of the assessee is directed against CIT(A) s order dated 19.06.2017. The relevant assessment year is 2012-2013. 2. The solitary issue raised is whether the CIT(A) is justified in imposing penalty u/s 271(1)(c) of the I.T.Act amounting to ₹ 57,29,893. 3. The brief facts of the case are as follow: The assessee had entered into an agreement dated 06.06.2011 with M/s.Skyline Construction and Housing Private Limited. As per the agreement, permission of right of way through assessee s land was given to M/s.Skyline Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ITA No.1384/Bang/2017 (order dated 31.05.2018). 5. In the meanwhile, the CIT(A) issued notice dated 16.05.2017 u/s 274 r.w.s. 271(1)(c) of the I.T.Act directing the assessee to show cause why penalty u/s 271(1)(c) cannot be imposed on enhancement made by him in the quantum assessment. The CIT(A) vide order dated 19.08.2017 imposed penalty u/s 271(1)(c) of the I.T.Act for the enhancement made by him in the quantum assessment (i.e. penalty was imposed on quantum enhancement of ₹ 2 crore). The CIT(A) imposed penalty of ₹ 57,29,893 being 100% of tax sought to be evaded. The relevant finding of the CIT(A) in imposing penalty of ₹ 57,29,893 reads as follow:- 9. Now I proceed in levying the penalty on the enhancement of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect by ITO-W-5(1)(2) vide letter dated 08.05.2017 1,23,48,673 4. Difference of 3-1 is the tax on income concealed 57,29,893 5. The minimum penalty @ 100% of the tax evaded. 57,29,893 6. The maximum penalty @ 300% of the tax evaded 1,71,89,679 Thus, the minimum penalty leviable in this case at 100% of the tax sought to be evaded is ₹ 57,29,893/- and the maximum penalty leviable being 300% of such tax sought to be evaded is ₹ 1,71,89,679/-. In view of the fact and circumstances of the case, taking a liberal view, I hereby consider a minimum penalty is leviable in this case. Accordingly, the minimum penalty of ₹ 57,29,893/- is hereby levied. 6. The assessee being aggrieved by the order of the CIT(A) imposing penalty of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty notice submitted by the Appellant on 26.05.2017 wherein detailed reasons have been given as to why penalty cannot be imposed. This reply finds no mention in the order imposing penalty. In fact, on page 5 of the penalty order, the learned CIT (A) has referred to the Appellant's replies dated 21.03.2017 and 24.03.2017 which had been submitted with respect to the main appeal against the assessment order. This only establishes that the learned CIT (A) had pre-decided to levy penalty. The penalty order passed without even reading the Appellant's reply cannot be considered judicious by any yardstick. A simple reading of the order will reveal that it has been passed without application of mind. Such an order cannot be sustained. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal Representative relied on the order of the CIT(A). 9. We have heard the rival submissions and perused the material on record. As regards the quantum assessment, the issue was decided against the assessee by the ITAT in its order dated 31.05.2018 in ITA No.1384/Bang/2017. The assessee had preferred an appeal to the Hon ble jurisdictional High Court u/s 260A of the I.T.Act against the above order of the ITAT. (appeal was instituted on 17.09.2018). The Hon ble jurisdictional High Court had admitted the appeal on 31.05.2019. The Hon ble jurisdictional High Court in the case of CIT v. Dr.Harsha N.Biliangady (supra) had held that when substantial question has been admitted on quantum assessment, penalty u/s 271(1)(c) of the I.T.Act cannot sur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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