IN INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SRI MAHAVIR SINGH, JM AND SRI RAJESH KUMAR, AM ITA No.6618/Mum/2014 (A.Y:2009-10) M/s. Dhanrajgir Business Pvt. Ltd., Vs. Income Tax Officer, G-43, Dhanraj Mahal, C. S. M. Marg, Ward-2(1)(2), Mumbai Apollo Bunder, Colaba, Mumbai -09 PAN:AABCD 3080D Appellant .. Respondent Appellant by .. Sri Firoze Andhyarujina,AR Respondent by .. Ms. Surabhi Sharma, DR Date of hearing .. 15-09-2016 Date of pronouncement .. 15-09-2016 ORDER PER MAHAVIR SINGH, JM: This appeal by assessee is arising out of order of CIT (A)-4, Mumbai in appeal No.CIT (A)-4/IT-150/ITO.2(1)(2)/2013-14 dated 07-08-2014. Assessment was framed by ITO-2(1) (2), Mumbai u/s 143(3) of Income Tax Act, 1961 (hereinafter Act ) for assessment year 2009-10 vide his order dated 29-12-2011. Penalty under dispute was levied by AO, Mumbai u/s. 271(1) (c) of Act vide his order dated 19-07-2013. 2. only issue in this appeal of assessee is against order of CIT (A) confirming levy of penalty u/s. 271(1) (c) of Act by AO in respect to income derived from letting out of properties, whether same is business income or income from house property. 3. At outset, learned Counsel for assessee filed copy of Tribunal s order in assessee s own case for assessment year 2009-10, in quantum appeal, in ITA No.2488/Mum/2013 dated 14-08-2015 wherein Tribunal has restored issue back to file of AO it entirety vide Para 5 as under:- 5. In view of decision of Hon ble Supreme Court in case of Chennai Properties (supra), we restore matter back to file of Assessing Officer for deciding afresh after considering proposition of law laid down by Hon ble Supreme Court in case of Chennai Properties (supra). We direct accordingly . 2 ITA No.6618/Mum/2014 In view of this, learned Counsel for assessee stated that penalty will not survive. On query from Bench, learned CIT DR fairly conceded that Tribunal has restored matter back to file of AO in quantum appeal. 4. After hearing rival contentions and going through facts of case, we find that Tribunal has restored matter back to file of AO in quantum appeal for fresh adjudication. Hence, assessment is not surviving now, hence, penalty levied by AO u/s 271 (1) (c) of Act also does not survive. Accordingly, we delete penalty and allow appeal of assessee. However, AO during course of set aside proceedings, if is satisfied that this is fit case for initiation of penalty proceedings for concealment of income or furnishing of inaccurate particulars of income as case may be, he may do so as per law. 5. In result, appeal of assessee is allowed. Order pronounced in open court on 15-09-2016. Sd/- Dd/- (RAJESH KUMAR) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 15-09-2016 Lakshmikanta Deka/Sr.PS Copy of Order forwarded to: 1. Appellant 2. Respondent. 3. CIT (A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER, Assistant Registrar ITAT, MUMBAI 3 ITA No.6618/Mum/2014 Sr.No. Particulars Date Initials Member Concerned 1 Dictation given on 15/09/16 LK Deka JM 2 Draft placed before author 16/09/16 3 Draft proposed/placed before second Member 4 Draft discussed/approved by Second member 5 Approved Draft comes to Sr.PS 6 Kept for pronouncement on 7 File sent to Bench Clerk 8 Date on which file goes to Head Clerk 9 Date of dispatch of Order M/s. Dhanrajgir Business Pvt. Ltd. v. Income-tax Officer, Ward-2(1)(2), Mumbai