Per B.R.BASKARAN, Accountant Member: The assessee has filed this appeal challenging the order dated 14.3.2013 passed by Ld CIT(A), Kozhikode and it relates to the block period ending 1999-2000.
2. The penalty levied by the assessing officer u/s 158BFA(2) of the Act, having been confirmed by Ld CIT(A) partially, the assessee has filed this appeal before us.
3. At the time of hearing, the Ld D.R submitted that the assessing officer has passed the impugned penalty order on the additions sustained by the Tribunal, i.e. the impugned penalty order was after the receipt of order passed by the Tribunal. However, the revenue preferred appeal before the Honble High Court of Kerala challenging the order passed by the Tribunal and the Honble High Court has decided the issues in favour of revenue. The Ld D.R also furnished a copy of order dated 21.12.2011 passed by the Honble High Court in the hands of the assessee reported in (2012)(207 Taxman 193)(Kerala). Accordingly, the Ld D.R submitted that the penalty order passed by the assessing officer needs to be revised in accordance with the decision rendered by Honble High Court. IT(SS)A No.02/Coch/2013
4. On the contrary, the Ld A.R submitted that the present appeal is filed against the penalty order passed by the AO. He further submitted that the provisions of sec. 158BFA do not provide for upward revision of penalty to bring it in line with the upward revision of income consequent to the order of High Court.
5. We have heard rival contentions. Admittedly, the impugned penalty order was passed by the assessing officer after the receipt of order passed by the Tribunal. Hence the AO has imposed penalty on the additions confirmed by the Tribunal. Thereafter, the Honble High Court of Kerala has decided the appeal filed by the revenue challenging the order of the Tribunal. We notice that the High Court has decided the issues in favour of revenue, meaning thereby, the quantum of income has got enhanced by the order of Honbe High Court. Accordingly, we find merit in the contentions of the revenue that the penalty order needs to be revised in terms of the order of High Court.
6. In view of the foregoing discussions, we are of the view that the issue relating to penalty needs to be examined afresh at the end of the assessing officer. Accordingly, we set aside the order of Ld CIT(A) and restore the matter to the file of the assessing officer for fresh consideration. Before us, the Ld A.R contended that the provisions of sec. 158BFA do not provide for enhancement of penalty. Since we have set aside all the matters relating to the penalty to the file of the AO, the assessee is free to urge all issues, both on legal points and on merits, before him.
7. In the result, the appeal filed by the assessee is treated as allowed for statistical purposes. Pronounced accordingly on 14-03-2014. sd/- sd/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Place: Kochi Dated: 14th March, 2014 IT(SS)A No.02/Coch/2013 Copy to:
1. O.Abdul Razak, Emirates Residence, Kodinhi P.O., Chemmad, Malappuram District.
2. The Assistant Commissioner of Income-tax, Circle-1, Tirur.
3. The Commissioner of Income-tax(Appeals), Kozhikode.
4. The Commissioner of Income-tax, Kozhikode.
5. D.R., I.T.A.T., Cochin Bench, Cochin.
6. Guard File. By Order (ASSISTANT REGISTRAR)
I.T.A.T, COCHIN