If the addition has been restored to the file of A.O., the penalty on this aspect should also be restored to the file of A.O. for taking a fresh decision

The Asst. Commissioner of Income Tax Vs M/s A F Ferguson & Co. (ITAT Mumbai)- The learned Counsel for the assessee contended that the instant penalty be also not sustained in view of the order passed by the Tribunal in assessment year 2001-2002. Copy of the said order was placed on record. In the opposition, the learned Departmental Representative relied on the penalty order passed by the A.O. It is noticed that the Tribunal has deleted the penalty in assessment year 2001-2002 on the ground that the addition itself was deleted by the Tribunal in quantum proceedings.

In the instant year the facts are not similar inasmuch as the Tribunal has not deleted the addition but simply restored a larger part of it to the file of Assessing Officer for fresh verification. When the addition has been restored to the file of A.O., in our considered opinion, the penalty on this aspect should also be restored to the file of A.O. for taking a fresh decision in accordance with the view finally taken by him in respect of addition in quantum proceedings. Our view is fortified by the judgement of the Hon’ble Supreme Court in the case of Mohammed Mohatram FarooquiVs. CIT (SC) 2010-TIOL-23-SC-IT. We, therefore, overturn the impugned order on this issue and restore the matter to the file of A.O.