M/s Bhushan Steel Ltd., New Delhi V. DCIT, New Delhi

ITA 294/DEL/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 5749 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 20-01-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: FARHAT DORESHI
• Assessee Lawyers: ASHWANI KUMARCA
• Keywords: Capital asset; Depreciation; Revenue expenditure; Capital expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A DELHI BEFORE SHRI R.P. TOLANI AND SHRI K.G. BANSAL ITA NOS. 293 & 294(DEL)/2010 ASSESSMENT YEARS: 2002-03 & 2003-04 M/S BHUSHAN STEEL LTD., DY. COMMISSIONER OF INCOME (FORMERLY BHUSHAN STEEL & VS. TAX, CIRCLE 2(1),NEW DELHI. STRIPS LTD.),F-BLOCK, FF, INTERNATIONAL TRADE TOWER, NEHRU PLACE, NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHWANI KUMAR,C.A RESPONDENT BY: SHRI FARHAT DORESHI, SR. DR ORDER PER K.G. BANSAL ; AM THESE TWO APPEALS OF THE ASSESSEE ARISE FROM A CONSOLIDATED ORDER FOR THREE YEARS PASSED BY THE CIT(APPEALS)-V, NEW DELHI, IN APPEAL NOS. 25, 26 AND 27/09-10 ON 11.12.2009 IN RESP ECT OF ASSESSMENT YEARS 2002-03, 2003-04 AND 2004-05 RESPECTIVELY. HOWE VER, ONLY TWO APPEALS FOR ASSESSMENT YEARS 2002-03 AND 2003-04 WERE ARGUED BEFORE US. IN VIEW OF THE FACT THAT THE APPEALS WERE ARGUED IN A CONSOLIDATED MANNER BY THE LD. COUNSEL FOR THE ASSESSEE AND THE LD . DR, WE THINK IT FIT TO PASS A CONSOLIDATED ORDER. ITA NOS. 293 & 294(DEL)/2010 2 2. THE ONLY GROUND TAKEN IN ASSESSMENT YEAR 20 02-03 IS THAT THE LD. CIT(APPEALS) ERRED ON FACTS AND IN LAW IN UPHO LDING THE LEVY OF PENALTY OF RS. 6,82,078/- U/S 271(1)(C) OF THE ACT ON CL AIM OF THE DEDUCTION OF DEPRECIATION OF RS. 19,10,596/- ON POWER LINE BY HOLDING THAT THESE WERE NOT OWNED BY THE COMPANY. IT IS MENTIONED THA T THE ADDITION IS NOT OF SUCH A NATURE WHICH CAN LEAD TO THE CONCLUSION OF CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE FACTS IN REGARD TO THE CLAIM OF DEPRECIATION ARE MENTIONED BY TH E LD. CIT(APPEALS) IN PARAGRAPH 4 ALONG WITH HIS CONCLUSION THAT THE EXPENDITURE HAD TO BE REDUCED FROM RESERVES AND SURPLUS FOR GIVING PROPER PICTURE OF FINANCIAL HEALTH OF THE COMPANY. FOR THE SAKE OF READY REFERENCE, THIS PARAGRAPH IS REPRODUCED BELOW:- 4. THE ASSESSEE COMPANY HAD MADE PAYMENT OF MO NEY TO U.P. STATE ELECTRICITY BOARD FOR LAYING OF POWER LINES AND INSTALLING A SUB-STATION AT SAHIBABAD IN THE FA CTORY PREMISES OF THE ASSESSEE, IN THE A.Y. 1999-00 OF RS. 181. 30 LAKH, THE ASSESSEE IS CLAIMING DEPRECIATION ON THIS AMOUNT OF PAYMENT, TREATING IT AS CAPITAL EXPENDITURE INCURRED BY THE ASSESSEE AND OWNER OF SUCH POWER LINES AND SUB-SECTION. THE PAYMENT WAS MADE TO UPSEB FOR LAYING OF A 220 KV PO WER LINE FROM THEIR GRID OF BHUSHAN STEEL LTD.S 220 KV SUB-STATION. THE SAID POWER LINE WAS MEANT FRO THE EXCLUS IVE USE OF THE COMPANY AND ENTAILED THE GUARANTEE OF CONTINUOU S SUPPLY OF POWER IN SYNCHRONIZE THEREOF WITH THE UP STATE ELECTRICITY BOARD GRID. SINCE THE ASSESSEE COMPANY IS NO T THE OWNER OF SUCH TRANSMISSION LINES AND SUB-STATION, THE DEPRECIATION IS ITA NOS. 293 & 294(DEL)/2010 3 NOT ALLOWED TO THE ASSESSEE BY ITAT, DELHI. TH IS PAYMENT CANNOT BE TREATED AS REVENUE EXPENDITURE, AS IT WAS NOT ALLOWED BY ITAT, DELHI. THEREFORE, IT IS A CA PITAL EXPENDITURE INCURRED BY ASSESSEE, BUT AS THE ASSESSEE IS NOT OWNER OF POWER LINES AND SUB-STATION INSTALLED IN ITS FACTORY PREMISES, DEPRECIATION IS NOT ALLOWED BY ITAT. THE ASSESSEE HAS TO REDUCE SUCH EXPENDITURE FROM I TS RESERVES AND SURPLUS AND RECTIFY THE BALANCE SHEET TO GIVE PROPER PICTURE OF FINANCIAL STATEMENTS OF THE COMPANY. THIS EXPENDITURE CANNOT BE REVENUE EXPENDITURE A ND CANNOT BE GIVEN EFFECT TO IN REDUCING THE PROFIT OF THE COM PANY IN THE PAST YEARS OR FUTURE YEARS ANY MORE. THUS, TH E AO IS DIRECTED TO RECOMPUTED THE TAX SOUGHT TO BE EVADED BY NOT ALLOWING THIS DEPRECIATION ON POWER LINES AND SUB-STATIONS ERECTED BY UPSEB IN ASSESSEES FACTORY PREMISE S AND IMPOSE MINIMUM PENALTY OF 100% OF TAX SOUGHT T O BE EVADED ON THIS ISSUE FOR THE A.YS. 2002-03, 2003-0 4 AND 2004- 05. 2.1 IT MAY ALSO BE MENTIONED THAT THE AO HAD LEVIED THE PENALTY BY RELYING ON THE DECISION OF HONBLE SUPREME COU RT IN THE CASE OF DHARMENDRA TEXTILE PROCESSORS LTD., 306 ITR 277, IN WHICH IT WAS HELD THAT THE LEVY IS A CIVIL LIABILITY, WHICH HAS TO BE DECIDED IN THE LIGHT OF THE STATUTORY PROVISION AND EXPLANATION THERETO. THE FACTS MENTIONED IN THIS REGARD BY THE AO ARE REPRODUCED AS UNDER :- IN THE ASSESSMENT PROCEEDINGS, IT WAS OBSERVED BY THE AO THAT THE ASSESSEE HAD CLAIMED DEPRECIATION OF R S. 19,10,566/- ON POWER LINES NOT OWNED BY THE ASSESSEE. TH E ASSESSEE WAS ASKED TO SUBMIT THE QUANTIFICATION OF SUCH CLAIMS AND ITS JUSTIFICATION. IT WAS EXPLAINED BY AR THA T CLAIM OF DEPRECIATION ON POWER LINES WAS CLAIMED AS ASSESSEE ITA NOS. 293 & 294(DEL)/2010 4 COMPANY MADE PAYMENTS TO UPSEB (UTTAR PRADESH ST ATE ELECTRICITY BOARD) FOR LAYING THE POWER LINES. AS THE SIMILAR CLAIMS HAD BEEN DISALLOWED IN PAST YEARS ALSO AND CIT(A) HAD UPHELD THE DISALLOWANCES IN PAST YEARS. EVEN IN SECOND APPEAL THE HONBLE ITAT VIDE ITA NO. 4333(DEL )/2002, ITA NOS. 2981 AND 2982(DEL)/2003 FOR THE ASSESSMENT YEARS 1999-00, 2000-01 AND 2001-02 ALSO DISMISSED THE ASSESSEES APPEAL IN THIS REGARD. ACCORDINGLY CLAIM OF ASSESSEE FOR DEPRECIATION OF RS. 19,10,566/- ON POWER LINES NO T OWNED BY THE ASSESSEE WAS DISALLOWED BY THE AO AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. 3. BEFORE US, THE LD. COUNSEL SUBMITTED THAT TH E ASSESSEE HAD MADE PAYMENT OF RS. 181.30 LAKH IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 1999-00 TO UP STATE ELECTRICITY BOARD (UPS EB FOR SHORT) FOR LAYING A 220KV POWER LINE FROM THEIR GRID TO THE SU B-STATION OF THE ASSESSEE. THIS LINE WAS MEANT FOR EXCLUSIVE USE OF THE ASSESSEE, WHICH ENSURED UNINTERRUPTED POWER SUPPLY TO ITS UNIT. THE A SSESSEE CAPITALIZED THIS EXPENDITURE AND CLAIMED DEPRECIATION YEAR AFTER Y EAR. THE CLAIM FOR DEPRECIATION WAS DENIED IN PAST AS WELL AS IN THIS YEAR ON THE GROUND THAT THE ASSESSEE WAS NOT THE OWNER OF THE P OWER LINE. THIS DECISION HAS BEEN ACCEPTED BY THE ASSESSEE. HOWEVER, TH E EXPENDITURE COULD OTHERWISE BE CLAIMED IN FULL IN ASSESSMENT YEAR 1999-00 AS REVENUE EXPENDITURE BECAUSE THE ASSESSEE DID NOT BECOME OWNER OF ANY CAPITAL ASSET BY DINT OF THE AFORESAID EXPENDITURE. IN A NY CASE, THE ISSUE WHETHER THE EXPENDITURE IS OF REVENUE NATURE OR CAPITA L NATURE IS NOT FREE FROM ITA NOS. 293 & 294(DEL)/2010 5 DOUBT. THEREFORE, CAPITALIZATION OF EXPENDITURE AND DEDUCTION OF DEPRECIATION THEREON IN THE YEAR OF EXPENDITURE A ND THEREAFTER WAS NOT SUCH AN ACT AS TO INVITE PENALTY U/S 271(1)(C ). IN THIS CONNECTION, RELIANCE WAS PLACED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. HMA UDYOG (P) LTD., (2007) 15 9 TAXMAN 394. IN THAT CASE, THE ASSESSEE CARRIED OUT EXTENSIVE RE PAIRS IN ITS COMMERCIAL PREMISES WITH A VIEW TO START THE BUSINESS OF RESTAURANT AND FILM DISTRIBUTION. THE EXPENDITURE WAS HELD TO BE C APITAL IN NATURE AND PENALTY PROCEEDINGS WERE INITIATED. THE TRIBUNA L DELETED THE PENALTY BY STATING THAT EVEN IF THE MATTER IS ULTIMATE LY DECIDED AGAINST THE ASSESSEE, IT CANNOT BE SAID THAT IT HAD ATTEMPT ED TO CONCEAL PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF I NCOME. AFTER HEARING THE ARGUMENTS OF BOTH THE SIDES, THE HONBLE COURT CAME TO THE CONCLUSION THAT THE QUESTION WAS DEBATABLE AND, THEREFORE , MAKING A CLAIM AS REVENUE EXPENDITURE WOULD NOT AMOUNT TO FURNISHI NG INACCURATE PARTICULARS OF INCOME. PARAGRAPH 6 OF THIS JUDGMENT IS REPRODUCED BELOW FOR READY REFERENCE:- 6. AFTER HEARING LEARNED COUNSEL FOR THE P ARTIES, WE ARE OF THE VIEW THAT THERE IS NO QUESTION OF THE A SSESSEE HAVING ATTEMPTED TO CONCEAL THE PARTICULARS OF HIS INC OME, WHICH IS NOT EVEN IN THE CASE OF THE REVENUE. SO FA R AS FURNISHING ITA NOS. 293 & 294(DEL)/2010 6 OF INACCURATE PARTICULARS ARE CONCERNED, IT IS QUITE CLEAR THAT THE ASSESSEE HAD FURNISHED ALL RELEVANT PARTICULARS OF HIS INCOME BUT ONLY CLAIMED IT TO BE A REV ENUE EXPENDITURE WHILE ACCORDING TO THE4 DEPARTMENT, THE EXPENDITURE INCURRED WAS OF A CAPITAL NATURE. THIS WAS, A RIGHTLY HELD BY THE TRIBUNAL, A DEBATABLE ISS UE AND WOULD NOT AMOUNT TO FURNISHING OF INACCURATE PARTIC ULARS SO AS TO ATTRACT PENALTY PROCEEDINGS. 3.1 IN REPLY, THE LEARNED DR SUBMITTED THAT THE ASSESSEE HAD ITSELF CAPITALIZED THE EXPENDITURE IN THE BOOKS OF ACC OUNT FOR ASSESSMENT YEAR 1999-00. THE ASSESSEE WAS OBVIOUSLY NOT THE OW NER OF THE POWER LINES AND AS SUCH ONE OF THE CONDITIONS FOR CLAIM O F DEPRECIATION, NAMELY, THAT THE ASSESSEE SHOULD BE OWNER OF THE ASSE T, HAS NOT BEEN SATISFIED IN THIS CASE. 3.2 WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. THE QUESTION WHETHER AN EXPENDITURE IS OF CAPITAL NATURE OR REVENUE NATURE IS ALWAYS A MIXED QUESTION OF FACT AND LAW. THE ASSESSEE HAD CAPITALIZED THE EXPENDITURE OF RS . 181.30 LAKH IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 199 9-00. IT WAS REPRESENTED BEFORE THE LD. CIT(APPEALS) THAT THE EXPENDITURE COULD HAVE BEEN CLAIMED AS REVENUE EXPENDITURE IN THE YEAR OF ITS INC URRING IN VIEW OF THE DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT ITA NOS. 293 & 294(DEL)/2010 7 VS. PANBARI TEA CO. LTD., (1985) 151 ITR 726. THE QUESTION IN THAT CASE WAS WHETHER, ON THE FACTS AND IN THE CIRCU MSTANCES OF THE CASE, THE TRIBUNAL WAS RIGHT IN LAW IN HOLDING THAT THE SU M OF RS. 33,228/- PAID BY THE ASSESSEE TO THE ASSAM ELECTRICITY BOARD IS A LLOWABLE AS A REVENUE EXPENDITURE? THE AMOUNT WAS PAID AGAINST CHARGE S FOR LAYING SERVICE LINE ETC. THE QUESTION WAS ANSWERED IN AFFIR MATIVE, I.E., IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THE LD. CIT(AP PEALS) DID NOT CONSIDER THIS ASPECT OF THE ISSUE BUT DECIDED THE MAT TER ON THE BASIS OF THE PAST DECISIONS IN THE MATTER. THE FACT IS THAT THE ISSUE WHETHER THE EXPENDITURE WAS REVENUE IN NATURE OR CAPITAL IN NATURE WAS NOT EXAMINED AS THE LIMITED ISSUE IN QUANTUM APPEALS WAS IN REGARD TO DEDUCTION OF DEPRECIATION, WHICH WAS ANSWERED IN NEGATIVE, I .E., AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE. HOWEVER, WE ARE OF THE VIEW THAT THE ASSESSEE COULD POSSIBLY CLAIM THE WHOLE OF THE EXPENDITURE AS REVENUE EXPENDITURE IN ASSESSMENT YEAR 1999-00 AND THE RESULT WOULD HAVE BEEN THAT THE DEDUCTIONS NOW CLAIMED OVER A NUMBER OF YEARS MIGHT HAVE BEEN ALLOWED IN THAT YEAR. IN OTHER WORDS, WE ARE OF THE VIEW THAT THE CONDUCT OF THE ASSESSEE WAS NOT SUCH WHICH COU LD ESTABLISH THE CHARGE OF CONCEALMENT OF INCOME OR FURNISHING INACCURAT E PARTICULARS OF INCOME. ITA NOS. 293 & 294(DEL)/2010 8 THEREFORE, WE ARE OF THE VIEW THAT THE LD. CI T(APPEALS) WAS NOT JUSTIFIED IN SUSTAINING THE LEVY OF PENALTY. 4. IN ASSESSMENT YEAR 2003-04, THE GROUND OF A PPEAL OF THE ASSESSEE PERTAINS TO THREE MATTERS, THE FIRST BEING LEVY OF PENALTY OF RS. 10,81,748/- IN RESPECT OF CLAIM OF DEPRECIATION ON THE POWER LINE AMOUNTING TO RS. 14,32,925/-. THIS MATTER STANDS COVERED BY OUR ORDER FOR ASSESSMENT YEAR 2002-03 (SUPRA). RELYING O N THAT ORDER, IT IS HELD THAT THE LD. CIT(APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE PENALTY IN RESPECT OF THIS MATTER. 5. THE SECOND AND THIRD ISSUES ARE IN RELATION TO DISALLOWANCE OF DEDUCTION U/S 80-IB IN RESPECT OF PUBLIC ISSUE E XPENSES OF RS. 42,98,592/- AND GRATUITY OF RS. 7,36,766/-. IT IS MENTIONE D THAT THESE MATTERS WERE RESTORED TO THE FILE OF THE AO AND CONSEQUENTIAL ASSESSMENT HAS NOT BEEN FRAMED BY HIM. 5.1 IN REGARD TO PUBLIC ISSUE EXPENSES, THE F ACTS ARE STATED ON PAGE 2 OF THE PENALTY ORDER THAT THE ASSESSEE DID NO T CONSIDER THE EXPENSES WHILE COMPUTING PROFITS OF THE ELIGIBLE UNIT, ENT ITLED TO DEDUCTION U/S 80- ITA NOS. 293 & 294(DEL)/2010 9 IB. IT WAS EXPLAINED THAT THE EXPENSES PERT AIN TO OTHER UNIT AND NOT THE ELIGIBLE UNIT. IT APPEARS THAT NO DOCUMENTARY E VIDENCE WAS PLACED ON RECORD TO SUBSTANTIATE SUCH A CLAIM. THEREFOR E, OUT OF TOTAL EXPENSES OF RS. 83,68,537/-, THE EXPENDITURE OF RS. 42,98, 592/- WAS ATTRIBUTED TO THE ELIGIBLE UNIT ON PRO-RATA BASIS. THUS, THE PRO FITS OF THE ELIGIBLE UNIT WERE REDUCED BY THIS AMOUNT. IT IS ALSO MENTIONED T HAT GRATUITY OF RS. 7,36,776/- WAS REDUCED FROM THE PROFITS OF THE ELIGIBLE UNIT ON THE SAME BASIS. FINALLY, THE PENALTY WAS LEVIED BECAUSE DEDUCTION U/S 80-IB IN RESPECT OF PROFITS OF THE ELIGIBLE UNIT STOOD REDUCED BY THESE AMOUNTS. 5.2 THE FINDINGS OF THE LD. CIT(APPEALS) WERE THAT CERTAIN AMENDMENTS MADE IN SECTION 271(1)(C) AND IN SERTION OF EXPLANATIONS THEREUNDER WERE INTENDED TO FORCE THE ASSESS EE TO FILE A CORRECT RETURN OF INCOME. THEREFORE, NON-DEDUCTION OF AFORESAI D EXPENDITURE FROM THE PROFITS OF ELIGIBLE UNIT WOULD ATTRACT PENALTY U/S 271(1)(C). 5.3 BEFORE US, THE LD. COUNSEL REFERRED TO DISCUS SION IN PARAGRAPH 5 OF THE IMPUGNED ORDER, IN WHICH IT IS MENTIONED TH AT THE ASSESSEE HAD NOT CLAIMED CORRECT DEDUCTION U/S 80-IB IN THE ORIG INAL RETURN OF INCOME, BUT SUBMITTED FORM NO. 10-CCB AND COMPUTED THE DEDUCTION. A NOTE ITA NOS. 293 & 294(DEL)/2010 10 WAS ALSO PLACED THAT IN CASE THE INCOME BECOME S A POSITIVE FIGURE IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE CLAIM SHOULD BE ALLOWED. THE AO ASSESSED THE INCOME AT RS. 31,59,46,003/- AND, THEREFORE, ALLOWED DEDUCTION U/S 80-IB. THE CLAIM WAS, HOWEVER, EXAMINED AND IT WAS FOUND THAT THE ASSESSEE CLAIMED PUBLIC ISSUE EXPENSES AND SHARE CAPITAL EXPENSES AGGREGATING TO 83,68,537/-. NO AMOUNT WAS ALLOCATED TO THE ELIGIBLE UNIT FROM THIS EXPENDITURE. THE APPELL ATE ORDER, HOWEVER, DOES NOT SPEAK OF THE CLAIM IN REGARD TO GRATUIT Y EXPENSES, WHICH IN FACT HAVE BEEN SHOWN AT RS. 7,36,766/- IN ASSESSMENT YEAR 2004-05. ON THE BASIS OF THESE OBSERVATIONS, THE CASE OF THE L D. COUNSEL WAS THAT THE CLAIM WAS NOT MADE IN THE RETURN OF INCOME, BUT ONLY A NOTE WAS MADE THAT IN CASE INCOME IS ASSESSED AT A POSITIVE FIGURE, THE CLAIM U/S 80-IB MAY BE ALLOWED. THIS DOES NOT AMOUNT TO FURNISHING INACC URATE PARTICULARS OF INCOME OR EVEN CONCEALING THE INCOME. IN REPL Y, THE CASE OF THE LD. DR WAS THAT THE RE-COMPUTATION HAS ALREADY TAKEN PLACE IN THE MATTER, IN WHICH THE CLAIMS AS PER NOTE OF THE ASSESSEE HAV E BEEN ALLOWED. 5.4 WE HAVE CONSIDERED THE FACTS OF THE CASE AN D SUBMISSIONS MADE BEFORE US. WE FIND FROM THE PENALTY ORDER THAT OUT OF PUBLIC ISSUE EXPENSES AND SHARE CAPITAL EXPENSES OF RS. 83,68 ,537/-, THE EXPENDITURE ITA NOS. 293 & 294(DEL)/2010 11 OF RS. 42,98,592/- WAS ALLOCATED TO THE ELIGIBLE UNIT IN ABSENCE OF ANY EVIDENCE THAT THEY DID NOT PERTAIN TO IT ALSO. THE GRATUITY OF RS. 7,36,766/- WAS ALSO REDUCED FROM THE TOTAL PR OFIT OF THE ELIGIBLE UNIT ON THE SAME BASIS. HOWEVER, THE LD. CIT(APPEAL S) HAS ONLY CONSIDERED THE PUBLIC ISSUE EXPENSES AND SHARE CAPITAL EXPE NSES. THE GRATUITY EXPENSES OF RS. 7,36,766/- HAVE BEEN CONSIDERED BY HIM IN ASSESSMENT YEAR 2004-05. WE ALSO FIND THAT WHILE THE PENALTY ORDE R DOES NOT MAKE ANY MENTION OF THE NOTE, THE LD. CIT(APPEALS) HAS S TATED IN PARAGRAPH 5 THAT THE ASSESSEE DID NOT CLAIM ANY DEDUCTION U/ S 80-IB IN THE ORIGINAL RETURN BUT MADE A NOTE TO THE EFFECT THAT IN CASE HE IS ASSESSED AT A POSITIVE FIGURE, THE DEDUCTION MAY BE ALLOWED UNDER THE AFORESAID PROVISION. IT ALSO APPEARS FROM HIS ORDER THA T THE COMPUTATION OF INCOME OF THE ELIGIBLE UNIT WAS FURNISHED IN FORM 10- CCB. THE FACTS NARRATED IN THE PENALTY ORDER ARE AT VARIANCE WITH TH E FACTS NARRATED IN THE IMPUGNED ORDER. THE LD. CIT(APPEALS) HAS NOT G IVEN A CATEGORICAL FINDING ABOUT THE CORRECT STATE OF AFFAIRS OF T HE FACTS. THEREFORE, WE ARE NOT IN A POSITION TO DECIDE THE ISSUE OF LEVY OF PENALTY IN THIS REGARD. THEREFORE, THE MATTER IS RESTORED TO THE FILE O F THE LD. CIT(APPEALS) TO ASCERTAIN THE FACTS IN RESPECT OF BOTH THE EX PENSES, THE CLAIM MADE BY THE ASSESSEE U/S 80-IB AND THEREAFTER DECIDE WHETH ER THERE WAS OR THERE ITA NOS. 293 & 294(DEL)/2010 12 WAS NOT A CASE OF CONCEALMENT OF INCOME OR FURNI SHING INACCURATE PARTICULARS OF INCOME. 6. IN THE RESULT:- (I) ITA NO. 293(DEL)/2010 IS ALLOWED; AND (II) ITA NO. 294(DEL)/2010 IS TREATED AS PARTL Y ALLOWED FOR STATISTICAL PURPOSES. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26 .03.2010. SD/- SD/- (R.P. TOLANI) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE OF ORDER: 26.03.2010. SP SATIA COPY OF THE ORDER FORWARDED TO:- 1. M/S BHUSHAN STEEL LTD., NEW DELHI. 2. DY. CIT, CIRCLE-2(1), NEW DELHI. 3. CIT(A) 4. CIT, NEW DELHI. 5. DR, ITAT, NEW DELHI. ASSISTANT REGISTRA R. ITA NOS. 293 & 294(DEL)/2010 13