JCIT, Noida V. M/s. Noida Power Company, Greater Noida

ITA 149/DEL/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6317 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 27-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 08-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIRUPAMA KOTRU
• Assessee Lawyers: SHIVENDER KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : E : NEW DELHI BEFORE SHRI R.S. SYAL, AM AND MS SUCHITRA KAMBLE, JM ITA NO.149/DEL/2014 ASSESSMENT YEAR : 2008-09 JCIT, RANGE-3, NOIDA. VS. NOIDA POWER COMPANY, COMMERCIAL COMPLEX, BLOCK-H, ALPHA-II, GREATER NOIDA. PAN: AAACN4984D (APPELLANT) (RESPONDENT) DEPARTMENT BY : MS NIRUPAMA KOTRU, CIT, DR ASSESSEE BY : SHRI SHIVENDER KUMAR, CA DATE OF HEARING : 27.03.2017 DATE OF PRONOUNCEMENT: 28.03.2017 ORDER PER SHRI R.S. SYAL, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 31.10.2013, DELETING THE PENALTY OF R S.8 CRORE IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT, IN RELATION TO THE ASSESSMENT YEAR 2008-09 . ITA NO.149/DEL/2014 2 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE CLAIMED DEDUCTION OF RS.22.93 CRORE UNDER THE HEAD POWER P URCHASE PRICE. THIS DEDUCTION WAS CLAIMED ONLY THROUGH THE COMPUTATION OF INCOME WITHOUT DEBITING IT TO THE PROFIT & LOSS ACCOUNT. SUCH DED UCTION WAS MADE ON ACCOUNT OF SOME ADDITIONAL POWER PURCHASED BY THE A SSESSEE DUE TO INCREASE IN DEMAND. THE RATE APPLIED IN THE INVOIC E WAS DISPUTED BY THE ASSESSEE BY CLAIMING THAT IT WAS NOT A MARGINAL COS T AS AGREED UPON, BUT, HIGHER THAN THE MARGINAL COST. THE DIFFERENTIAL AM OUNT OF RS.22.93 CRORE WAS CLAIMED AS DEDUCTION. THE ASSESSING OFFICER MA DE ADDITION FOR THIS SUM AND ALSO IMPOSED PENALTY. THE LD. CIT(A) DELET ED THE PENALTY. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, IT IS OBSERVED THAT THE PENALTY UNDER IDENTICAL CIRCUMSTANCES WAS ALSO IMPOSED ON THE ASSESSEE FOR THE IMMEDIATELY PRECEDING ASSESSMENT YEAR I.E., 2007-08. THE TRIBU NAL, VIDE ITS ORDER DATED 05.09.2016 (ITA NO.1569/DEL/2013), HAS DELETE D THE PENALTY. A COPY OF SUCH ORDER HAS BEEN PLACED ON RECORD. THE LD. DR COULD NOT POINT OUT ANY DISTINGUISHING FEATURE FOR THIS YEAR VIS--VIS THE IMMEDIATELY PRECEDING YEAR WHICH HAS BEEN CONSIDERE D AND DECIDED BY ITA NO.149/DEL/2014 3 THE TRIBUNAL. RESPECTFULLY FOLLOWING THE PRECEDENT , WE UPHOLD THE IMPUGNED ORDER IN DELETING THE PENALTY. 4. IN THE RESULT, THE APPEAL FILED BY THE REV ENUE IS DISMISSED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 2 8 TH MARCH, 2017. SD/- SD/- (SUCHITRA KAMBLE) (R. S. SYAL) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED: 28 TH MARCH, 2017. DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI