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TMI Blog2021 (4) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... ich in turn arise against the penalty levied by assessing officer under section 271(1)(c) for A.Y. 1988-89 and 1989-90. Other remaining two appeals in ITA(s) No, 2141 & 2142 are directed against the order of ld. CIT(A)-1, Surat dated 12.06.2013 and 27.05.2013 for similar assessment years. 2. Brief back ground history of the cases is that initially, the assessee challenged the common order of ld. CIT(A) dated 08.12.2004 for AY 1988-89 & 1989-90, in appeal in ITA's No.293 & 294/AHD/2005. The assessee assailed the order of ld. CIT(A) by raising two substantial grounds of appeal; (i) that ld CIT(A) erred in confirming penalty of Rs. 2,47,900/-, when there was no concealment of income and (ii) in alternative and without prejudice that penalty i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. CIT(A), which was dismissed vide order dated 12.06.2012( AY 1988-89). Similar appeal for AY 1989-90 was dismissed by ld CIT(A) in order dated 27.05.2013. The assessee has challenged the order dated 12.06.2013 and 27.05.2013 in ITA No. 2141 & 2142/AHD/ respectively. 3. Thereafter, the assessee filed Miscellaneous Applications (M.A.) No.231 & 232/ AHD/2012 for fixing the appeals in ITA No. 293 & 294/AHD/2005 for adjudication of ground No.1. The M.A. No.231/Ahd/2012 and 232/Ahd/2012 were allowed vide detailed order dated 08.01.2021 and accordingly both the appeals were fixed for hearing for adjudication of appeal of Ground No.1. 4. While passing the order of M.A.(s) on 08.01.2021, this Bench noted that original files of ITA's No.293 & 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment years. 6. We have noted that facts for both the years, leading to levy of penalty are identical, except for variations of figure of amount of penalty levied under section 271(1)(c), the ld CIT(A) while passed common order for both assessment years, therefore , with the consent of parties the appeal in ITA No.293/AHD/2005 for A.Y. 1988-89 is treated as lead case. ITA No.293/Ahd/2005 for A.Y. 1988-89: 7. At the outset of hearing, the Ld. AR of the assessee submits that though the assessee has raised two separate sets of appeal for both the assessment years i.e. 1988-89 and 1989-90. The Ld. AR for the assessee further submits that in case his points of submissions are accepted in ITA's No.293 & 294/Ahd/2005, the appeals in ITA's No.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though, it was restricted by Tribunal to 5% of GP, thus, the assessee is liable to saddle with the penalty on such additions and the matter may be restore to the assessing officer for passing order afresh. 10. We have considered the rival submission of both the parties and have gone through the order of Lower Authorities. We have also deliberated on various case laws relied by the ld. AR for the assessee. We have also perused the contents of the order of Tribunal in quantum assessment appeals in ITA No(s). 186 & 187/Ahd/1998 dated 08.03.2004, the order of Tribunal dated 01.04.2005 and the order passed by Hon'ble Apex Court dated 04.09.2012 in Civil Appeal No. 577 of 2007. 11. We have noted that the assessee while filing return of income f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in Manish Dhirajlal Mehta Vs. ACIT, Vijay Proteins Ltd., Vs. CIT (supra), in Vijay Proteins Vs CIT (supra) and other case laws relied by ld. AR for the assessee. No contrary facts or law is brought to our notice. In the result, Ground No.1 of appeal is allowed. 13. In the result, appeal of the assessee is allowed on ground No.1 itself. ITA No.294/Ahd/2005 for A.Y. 1989-90: 14. As noted by the assessee has raised identical grounds of appeal in 293/Ahd/2005 for A.Y. 1988-89, which we have allowed, therefore, following the principle of consistency, the appeal for A.Y.1989-90 is also allowed with similar observation. ITA's No.2141/Ahd/2013 & 2142/Ahd/2013 for A.Y. 1988- 89 and 1989-90: 15. Considering the fact that while adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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