DCIT CIR - 3(1), MUMBAI V. M/s. GUJARAT AMBUJA CEMENTS LTD., MUMBAI

ITA 1379/MUM/2007

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1373 (ITAT-MUMBAI)
• Duration Of Justice: 10 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 12-01-2017
• Assessment Year: 2000-2001
• Appeal Filed On: 13-02-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Earning of tax free income; Question of law; Wrong claim
• Section: 14A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUM BAI , , , , ' BEFORE SHRI C.N.PRASAD, JM AND SHRI RAJESH KUMAR, AM / I.T.A. NO. 1379/MUM/2007 ( # $# / ASSESSMENT YEAR: 2000-01) ACIT (LTU) 1 WORLD TRADE CENTRE, CENTRE 1, 29 TH FLOOR, CUFFE PARADE, MUMBAI - 400005 / VS. M/S. GUJARAT AMBUJA CEMENTS LTD. 122, MAKER CHAMBERS-III, NARIMAN POINT, MUMBAI - 400021 ./ ./PAN/GIR NO. : AAACG0569P ( /APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 12.01.2017 /DATE OF PRONOUNCEMENT: 07.04.2017 / O R D E R PER C.N.PRASAD, JM: THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XXVII, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] DATED 22.11.2006 FOR THE A.Y. 2000-01 IN DELETING THE PENALTY U/S.271(1)(C) OF THE INCOME TA X ACT, 1961 ( IN SHORT THE ACT) ON VARIOUS ADDITIONS MADE BY THE ASSESSI NG OFFICER. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL:- REVENUE BY : SHRI ANAND MOHAN (CIT - DR) ASSESSEE BY: SHRI SOUMEN ADAK ITA NO.1379/M/2007 A.Y.2000-01 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY L EVIED BY THE A.O. U/S.271(1)(C) OF THE ACT IN RESPECT OF DIS ALLOWANCE OF CONSULTANCY CHARGES AND SERVICE CHARGES TOTALLY AMOUNTING TO RS.13,81,080/- IN RESPECT OF WHICH WRO NG CLAIM WAS MADE BY THE ASSESSEE COMPANY. THEREFORE, THERE WAS FAILURE ON PART OF THE ASSESSEE TO SUBSTANTIATE THE CLAIM WHICH TANTAMOUNTS TO FURNISHING OF INACCURATE PARTI CULARS AS ENVISAGED IN EXPLANATION 1 TO SECTION 271(1)(C) WHICH RESULTS IN LEVY OF PENALTY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY L EVIED BY THE A.O. U/S.271(1)(C) OF THE ACT IN RESPECT OF DIS ALLOWANCE OF PREMIUM PAID FOR LEASE HOLD LAND AMOUNTING TO RS.22,37,951/- TAKING INTO SUBMISSION OF THE ASSESS EE THAT CLAIM OF EXCLUSION OF AMOUNT OF PREMIUM ON LEASEHOL D LAND WAS BASED ON THE DECISION OF APEX COURT INT EH CASE OF GOTON LIME SYNDICATE VS. CIT(1966) 59 ITR 718 (SC) WAS PREVAILING AT THE TIME OF FILING OF RETURN OF INCOM E ACCORDING TO WHICH IT WAS ALLOWABLE DEDUCTION BUT SUBSEQUENTLY DECISION RENDERED BY APEX COURT IN THE CASE OF ADITYA MINERALS PVT. LTD. VS. CIT (1999) 236 ITR 39 (SC) AND R.B.SETH MOOLCHAND SUGANCHAND VS. CIT, 86 ITR 647 WHICH WERE AGAINST ASSESSEE COMPANY AND ASSESSE E HAD NOT MADE A CLAIM BASED UPON A SETTLED LAW IN TH EIR FAVOUR AND HENCE FILED INACCURATE PARTICULARS OF IN COME. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY L EVIED BY THE A.O. U/S.271(1)(C) ON THE ADDITION ON ACCOUNT O F UNUTILIZED MODVAT CREDIT OF RS.2,20,57,408/- WHICH WAS ADDED BY THE A.O. TO THE DECLARED INCOME OF THE ASS ESSEE RELYING ON THE JURISDICTIONAL HIGH COURTS DECISION IN THE CASE OF MELMOULD CORPORATION VS. CIT, 202 ITR 789 (BOM), IN RESPECT OF WHICH WRONG CLAIM WAS MADE BY THE ASSESSEE THUS ATTRACTING THE PROVISIONS OF EXPLANAT ION 1 TO SECTION 271(1)(C) RESULTING IN LEVY OF PENALTY. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY O N ITA NO.1379/M/2007 A.Y.2000-01 3 DISALLOWANCE OF EMPLOYEES STOCK OPTION SCHEME EXPEN SES OF RS.2,44,57,408/- REPRESENTING PROPORTIONATE CHAR GES DISALLOWED BY THE A.O. STATING TO BE A NOTIONAL FIG URE AND CONTINGENT LIABILITY IN RESPECT OF WHICH THE ASSESS EE MADE A WRONG CLAIM WHICH IT WAS NOT IN A POSITION TO SUBST ANTIATE THUS, ATTRACTING THE PENALTY U/S.271(1)(C) AS PER EXPLANATION 1. 5. ION THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY IN RESPECT OF DISALLOWANCE MADE BY THE A.O. U/S.14A AMOUNTING TO RS.50,000/- IN RESPECT OF WHICH THE ASSESSEE MADE A WRONG CLAIM WHICH IT WAS NOT IN A POSITION TO SUBSTANTIAT E THEREBY ATTRACTING PROVISIONS OF SECTION 271(1)(C) AS PER EXPLANATION 1. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY L EVIED BY THE A.O. U/S.271(1)(C) OF THE ACT IN RESPECT OF NON ALLOWANCE OF EXCLUSION OF EXPORT PROFIT U/S.80HHC COMPUTED BY APPLYING THE PERCENTAGE OF EXPORT TURNO VER WITH THE TOTAL TURNOVER ON THE PROFIT AS PER PROFIT AND LOSS ACCOUNT FOR THE PURPOSE OF COMPUTING BOOK PROFIT U/S.115JA AMOUNTING TO RS.2,50,53,532/- BY MAKING A WRONG CLAIM AND ASSESSEES RELIANCE ON CBDT CIRCULA R 618 DATED 21.02.1995 IS TOTALLY MISPLACED AS THE SA ID CIRCULAR WAS IN CONNECTION WITH THE PROVISIONS OF S ECTION 115JA WHICH ARE MATERIALLY DIFFERENT FROM THE PROVI SIONS OF SECTION 115JA. THIS WRONG CLAIM TANTAMOUNT TO CONCEALMENT AS ENVISAGED IN SECTION 271(1)(C) READ WITH EXPLANATION 1 THERETO. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY L EVIED BY THE A.O. U/S.271(1)(C) ON DENIAL OF EXCLUSION OF DE DUCTION U/S.81-IA ON PROFITS DERIVED BY AN INDUSTRIAL UNDER TAKING LOCATED IN AN INDUSTRIALLY BACKWARD STATE OR DISTRI CT, IN COMPUTING THE BOOKS PROFIT FOR THE PURPOSE OF SECTI ON 115JA OF THE ACT AMOUNTING TO RS.6,36,49,650/-. TH E CIT(A) FAILED TO APPRECIATE THE FACT THAT ASSESSEE HAD MADE A PATENTLY WRONG CLAIM AS ASSESSEE DID NOT EARN ANY INCOME ITA NO.1379/M/2007 A.Y.2000-01 4 ASSESSABLE U/S.28 FROM ITS UNIT IN HIMACHAL PRADESH AND HENCE IT AMOUNTS TO CONCEALMENT OF INCOME AS ENVISA GED IN SECTION 271(1)(C) READ WITH EXPLANATION 1 THERETO. 3. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTS ET SUBMITS THAT THE ADDITIONS MADE IN THE ASSESSMENT ORDER AGAINST WHICH PENALTY WAS LEVIED BY THE ASSESSING OFFICER IN RESPECT OF THE G ROUNDS RAISED BY THE REVENUE IN GROUND NOS.1, 3, 4, 6 AND 8, THE QUANTUM ADDITION WAS DELETED BY THE TRIBUNAL IN ITA NO.3359/MUM/2005 DAT ED 21.10.2016. COPY OF THE ORDER IS PLACED ON RECORD. THEREFORE, THE LEARNED COUNSEL SUBMITS THAT SINCE THE QUANTUM ADDITION IS DELETED IN RESPECT OF THE ABOVE SAID GROUNDS THE PENALTY WILL NOT SURVIVE. THE LEARNED DR AGREED WITH THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE TRIBUNAL IN QUANTUM PROCEEDINGS DELETED TH E ADDITION MADE IN THE ASSESSMENT ORDER ON WHICH PENALTY WAS LEVIED AN D CONTESTED BY THE REVENUE IN ITS APPEAL IN GROUND NUMBERS 1,3,4,6 AND 8. 4. WE HAVE HEARD BOTH THE PARTIES. SINCE THE QUANT UM ADDITIONS ARE DELETED BY ITAT IN THE APPEAL AGAINST THE QUANT UM PROCEEDINGS THE PENALTY LEVIED BY THE ASSESSING OFFICER IN RESP ECT OF THOSE GROUNDS WILL NOT SURVIVE. HENCE GROUND NUMBERS 1,3,4,6 AND 8 OF THE REVENUES APPEAL BEFORE US ARE DISMISSED. 5. COMING TO GROUND NO.2, 5 AND 7, THE LEARNED COUN SEL FOR THE ASSESSEE SUBMITS THAT GROUND NO.2 RAISED BY THE DEP ARTMENT IS IN RESPECT OF THE PENALTY DELETED BY THE CIT(A) ON THE DISALLOWANCE OF ITA NO.1379/M/2007 A.Y.2000-01 5 PREMIUM PAID FOR LEASE HOLD LAND. THE LEARNED COUN SEL SUBMITS THAT THE PENALTY WAS LEVIED ON THE SIMILAR DISALLOWANCES WHILE COMPLETING THE ASSESSMENTS FOR THE A.YS. 1998-99 AND 1999-2000 BY THE ASSESSING OFFICER AND THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.570/MUM/2007 AND 1415/MUM/2007 DATED 21.10.2016 DELETED THE PENALTY. THEREFORE, THE LEARNED COUNSEL SUBMITS TH AT SINCE PENALTY IS DELETED ON SIMILAR DISALLOWANCE IN EARLIER YEARS TH E SAME MAY BE FOLLOWING AND PENALTY FOR THIS YEAR ALSO TO BE DELE TED. 6. WE HAVE PERUSED THE ORDER OF THE CO-ORDINATE BEN CH IN ITA NO.570/MUM/2007 DATED 21.10.2016 PASSED FOR THE A.Y .1998-99. TRIBUNAL IN PARA 8 AND 9 OF THE ORDER DELETED THE P ENALTY LEVIED BY THE ASSESSING OFFICER BY AFFIRMING THE ORDER OF CIT(A) OBSERVING AS UNDER:- 8. GROUND NO.2 RELATES WITH THE DELETION OF PENALT Y BY LD. CIT(A) IN RESPECT OF DISALLOWANCE OF PREMIUM PAID FOR LEAS E HOLD LAND AMOUNTING TO RS.21,07,945/-. THE LD. AR FOR THE AS SESSEE ARGUED THAT PENALTY WAS LEVIED BY AO AS THE DISALLOWANCE W AS UPHOLD BY CIT(A) IN QUANTUM ASSESSMENT. THE PENALTY WAS DELE TED BY LD. CIT(A) BY FOLLOWING THE DECISION OF HIS PREDECESSOR IN A.Y.1996- 97. IT WAS FURTHER ARGUED THAT AT THE TIME OF FILI NG OF RETURN THE ISSUE WAS SQUARELY COVERED BY THE DECISION OF KERAL A HIGH COURT IN CASE OF CIT VS. H.M.T. (1993) 203 ITR 0820 (KAR. ). THE SIMILAR CLAIM WAS ALLOWED IN A.Y.1997-98. THE LD. AR FOR THE ASSESSEE WOULD ARGUE THAT THIS ISSUE IS HIGHLY DEBA TABLE AND DIVERGENT VIEWS ARE AVAILABLE THUS PENALTY ORDER WA S RIGHTLY DELETED BY LD. CIT(A). THE LD. AR FOR THE ASSESSEE FURTHER RELIED UPON THE DECISION OF CIT VS. RELIANCE PETROPRODUCTS 322 ITR 158 (SC) AND DECISION OF DELHI HIGH COURT IN CIT VS . NALWA SONS INVESTMENTS LTD. 327 ITR 543 (DEL). ON THE OT HER HAND THE LD DR FOR THE REVENUE SUPPORTED THE ORDER OF AO AND WOULD ARGUE THAT THE ORDER OF LD. CIT(A) BE REVERSED AND THE ORDER OF AO MAY BE RESTORED. ITA NO.1379/M/2007 A.Y.2000-01 6 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS OF THE LD REPRESENTATIVES OF THE PARTIES AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. AT THE TIME OF FILING OF RETURN THE ASSESSEE CLAIMED DEDUCTION ON ACCOUNT OF PREMIUM PAID ON LEA SE HOLD LAND, THE SAME WAS DENIED BY AO. IN APPEAL THE DIS ALLOWANCE WAS CONFIRMED AND THEREAFTER PENALTY WAS LEVIED. T HE ASSESSEE CLAIMED THAT THE TIME OF FILING OF RETURN OF INCOME THE ISSUE WAS COVERED IN FAVOUR OF ASSESSEE BY THE DECISION OF KE RLA HIGH COURT IN CIT VS. HMT (1993) 203 ITR 820. THE SIMIL AR CLAIM WAS ALLOWED IN A.Y.1997-98 (PAGE 76 TO 79 OF PB). IT IS SETTLED LAW THAT WHERE TWO LEGALLY SUSTAINABLE VIEWS ARE AV AILABLE ON THE POINT AND THE ASSESSEE ADOPT ONE OF THE POSSIBLE VI EW IN PREFERENCE TO THE OTHER, THAN IT CANNOT BE CONSIDER ED A CASE OF CONCEALMENT OF INCOME. THE SIMILAR VIEW WAS HELD I N UNIFLEX CABLES LTD. VS. DCIT (2012) 136 ITD 374 (MUM). MOR EOVER, MERE DISALLOWANCE OF CLAIM WOULD NOT AUTOMATICALLY LEAD TO DRAW A CONCLUSION FOR CONCEALMENT OF INCOME. THUS, KEEPING IN VIEW OF PECULIARITY OF THE CASE, WE DO NOT FIND ANY ILLEGALITY OR INFIRMITY IN DELETING THE PENALTY LEVIED BY AO IN R ESPECT OF DISALLOWANCE OF PREMIUM PAID FOR LEASE HOLD. THUS, THIS GROUND OF APPEAL RAISED BY REVENUE HAS NO FORCE AND THE SA ME IS DISMISSED. 7. RESPECTFULLY FOLLOWING THE ABOVE SAID ORDER WE U PHOLD THE ORDER OF THE CIT(A) IN DELETING THE PENALTY ON THE DISALLOWANCE OF PREMIUM PAID FOR LEASE HOLD FOR THIS ASSESSMENT ALS O. 8. GROUND NO.5 IS RELATING TO THE DELETION OF PENAL TY LEVIED IN RESPECT OF DISALLOWANCE MADE U/S.14A OF THE ACT. TH E LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT DISALLOWANCE U/S.14A OF THE ACT CAME TO BE MADE BY OPERATIONS OF THE PROVISIONS OF SECTION 14A AND THERE IS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF SUCH INCOME BY THE ASSESSEE. PLACING RELIANCE ON THE DE CISION OF THE MUMBAI BENCH IN THE CASE OF SKILL INFRASTRUCTURE LT D. VS. ACIT ITA NO.1379/M/2007 A.Y.2000-01 7 (2013) 157 TTJ 565 (MUM), LEARNED COUNSEL SUBMITS T HAT PENALTY WAS DELETED ON SIMILAR DISALLOWANCE MADE UNDER 14A OF T HE ACT. 9. THE LEARNED DR PLACED RELIANCE ON THE PENALTY OR DER. 10. HEARD BOTH THE PARTIES, PERUSED THE ORDERS OF T HE AUTHORITIES BELOW. THE DISALLOWANCE OF RS.50,000/-U/S.14A OF T HE ACT. CAME TO BE MADE BY OPERATIONS OF PROVISIONS OF SECTION 14A OF THE ACT EVEN THOUGH IT IS THE SUBMISSION OF THE ASSESSEE THAT NO EXPENDITURE WAS INCURRED FOR EARNING EXEMPT INCOME. SIMPLY BECAUSE THERE IS DIFFERENCE IN THE INCOME RETURNED AND INCOME ASSESS ED AND CERTAIN EXPENSES WERE DISALLOWED, IT CANNOT BE SAID THAT TH ERE IS A CONCEALMENT OF INCOME OR FURNISHING INACCURATE PART ICULARS OF INCOME. IN THE CASE OF SKILL INFRASTRUCTURE LTD. VS. ACIT ( SUPRA), THE TRIBUNAL OBSERVED AS UNDER:- OUT OF TWO MAJOR AMOUNTS OF DISALLOWANCE, ONE WAS EXPENSES OF 30/- LAKHS DISALLOWED ON ADHOC BASIS. THIS AMOUNT CANNO T BE BASIS FOR LEVY OF PENALTY AS IT WAS ADHOC DISALLOWANCE. THEREFORE, P ENALTY LEVIED ON THIS AMOUNT CANNOT BE SUSTAINED. THE OTHER AMOUNT IS DI SALLOWANCE UNDER SECTION 14A, EVEN THOUGH ASSESSEE CONTENDED THAT NO SUCH DISALLOWANCE WAS WARRANTED. BE THAT AS IT MAY, THE DISALLOWANCE UNDER SECTION 14A WAS CONSIDERED BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS LTD. 322 ITR 158, WHEREIN F URNISHING OF INACCURATE PARTICULARS WAS EXAMINED AND CANCELLATIO N OF PENALTY WAS UPHELD. THEREFORE, DISALLOWANCE UNDER SECTION 14A ALSO DOES NOT CALL FOR PENALTY KEEPING THE PRINCIPLES LAID DOWN BY THE ABO VE JUDGEMENT OF THE HONBLE SUPREME COURT. THE OTHER ONE IS DISALLOWAN CE OF DEPRECIATION WHICH ALSO DOES NOT CALL FOR LEVY OF PENALTY. 11. IN VIEW OF THE ABOVE WE HOLD THAT THERE IS NO C ONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF S UCH INCOME. THUS ITA NO.1379/M/2007 A.Y.2000-01 8 WE SUSTAIN THE ORDER OF THE CIT(A) IN DELETING THE PENALTY LEVIED FOR THE DISALLOWANCE MADE U/S.14A OF THE ACT. 12. THE LAST GROUND I.E. GROUND NO.7 IS IN RESPECT OF DELETION OF PENALTY LEVIED U/S.271(1)(C) OF THE ACT ON THE ADDI TION MADE BY THE ASSESSING OFFICER IN COMPUTING BOOK PROFIT U/S.115J A OF THE ACT IN RESPECT OF CAPITAL PROFITS I.E. PENALTY WAS LEVIED FOR NON-INCLUSION OF PROFIT ON SALE OF INVESTMENTS IN COMPUTING THE BOOK PROFIT. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT PENAL TY LEVIED ON SIMILAR ADDITION DURING THE A.Y.1999-2000 WAS DELETED BY TH E CIT(A) AND THIS WAS CONFIRMED BY THE CO-ORDINATE BENCH IN ITA NO.570/MUM/2007 DATED 21.10.2016. THE LEARNED COUN SEL REFERRING TO PARA 10 AND 11 SUBMITS THAT THE CO-ORDINATE BENC H DELETED THE PENALTY. THEREFORE, WE SUBMITS THAT THE PENALTY LE VIED FOR THE ASSESSMENT YEAR UNDER CONSIDERATION ON SIMILAR ADDI TION BE DELETED. 13. LEARNED DR RELIED ON THE PENALTY ORDER PASSED U /S.271(1)(C) OF THE ACT. 14. WE HAVE HEARD THE RIVAL SUBMISSIONS PERUSED THE ORDERS OF THE AUTHORITIES BELOW. ON IDENTICAL CIRCUMSTANCES, WE FIND THAT THE CO- ORDINATE BENCH DELETED THE PENALTY I.E. IN THE A.Y. 1998-99 ON THE ADDITION MADE TOWARDS NON-EXCLUSION OF PROFIT ON SA LE OF INVESTMENT IN COMPUTING BOOK PROFIT U/S.115JA OF THE ACT OBSER VING AS UNDER:- 10. GROUND NO.5 IS RELATED WITH DELETION OF PENALT Y FOR NON- EXCLUSION OF PROFIT ON SALE OF INVESTMENT IN COMPUT ING BOOK ITA NO.1379/M/2007 A.Y.2000-01 9 PROFIT. LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF AO AND PRAYED THAT THE PENALTY WAS DELETED BY LD. CIT(A) W ITHOUT ANY BASIS. LD. AR OF THE ASSESSEE ARGUED THAT THE ASSE SSE MADE A CLAIM IN THE RETURN OF INCOME ON THE BASIS OF DECIS ION OF VARIOUS TRIBUNAL VIZ. SUTLEJ COTTON MILLS LTD. VS. ACIT (19 93) 45 ITD 22 (CAL), GKW LTD. VS. JCIT (2000) 74 ITD 61 (CAL) AND ACIT VS. NORTH INDIA THEATERS P. LTD. (1996) 133 CTR 326 (DE L. TM). LD. AR OF THE ASSESSEE FURTHER ARGUED THAT AND SLP NO.29862/2011 ON 03.07.2012. IT IS FURTHER ARGUED THAT WHEN A SUBSTANTIAL QUESTION OF LAW IS ADMITTED, IT IS CERT AINLY A DEBATABLE ISSUE AND IN SUCH CIRCUMSTANCES PENALTY CANNOT BE L EVIED. 11. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PARTIES AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE AO LE VIED PENALTY ON ADDITION MADE IN THE NORMAL COMPUTATION AS WELL AS IN COMPUTATION OF BOOK PROFIT U/S.115JA. THE LD. CIT( A) WHILE CONSIDERING THIS GROUND CONCLUDED THAT ASSESSEE LOD GED CLAIM ON THE BASIS OF VARIOUS DECISIONS OF THE TRIBUNAL AND THE ASSESSEES CLAIM FOR DEDUCTION BASED ON CERTAIN LEGAL CONTENTI ON COULD NOT BE TREATED AS A CASE OF CONCEALMENT OF INCOME WITHI N THE MEANING OF SECTION 271(1)(C) OF THE ACT AND DELETED THE PENALTY. IT IS SETTLED LEGAL POSITION THAT WHERE TWO LEGALLY SUSTAINABLE VIEWS ARE POSSIBLE AND THE ASSESSEE HAS FOLLOWED ON E OF SUCH VIEW IN PREFERENCE OF THE OTHER THE SAME CANNOT BE CONSIDERED AS A CASE OF CONCEALMENT OF INCOME. MOREOVER, THE ISS UE IS DEBATABLE ONE AND AS PER OUR CONSIDERED OPINION, TH E FINDINGS OF LD. CIT(A) DOES NOT REQUIRE ANY FURTHER INTERFERENC E. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMI SSED. 15. FACTS AND CIRCUMSTANCES BEING IDENTICAL FOLLOWI NG THE SAID ORDER WE AFFIRM THE ORDER OF THE CIT(A) IN DELETING THE PENALTY LEVIED U/S.271(1)(C) OF THE ACT ON THIS ISSUE OF NON-EXCLU SION OF PROFIT ON SALE OF INVESTMENTS WHILE COMPUTING BOOK PROFIT U/S.115J A OF THE ACT. 16. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED. ITA NO.1379/M/2007 A.Y.2000-01 10 ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH APRIL, 2017 . SD/- SD/- (RAJESH KUMAR) (C.N.PRASAD) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 7 TH #! , 2017 MP % &$% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ( ) / THE CIT(A)- 4. ( / CIT 5. + , + , / DR, ITAT, MUMBAI 6. * ,- / GUARD FILE. / BY ORDER, ! ! //TRUE COPY// / /(DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI