DCIT 10(3)(2), MUMBAI V. PARLE AGRO P.LTD, MUMBAI

ITA 3173/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8889 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2017
• Appeal Filed By: Department
• Bench Allotted: H
• Assessment Year: 2009-2010
• Appeal Filed On: 05-05-2016
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Assessee Lawyers: FIROZE ANDHARUJINA
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO.3173/M/2016 (AY 2009 - 2010) DCIT - 10(3)(2), R.NO. 217, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400020. / VS. M/S. PARLE AGRO PVT LTD., WESTERN EXPRESS HIGHWAY, CHAKALA, ANDHERI (E), MUMBAI 400099. ./ PAN : AAACP8416G ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI M.C. OMI NINGSHEN, DR / RESPONDENT BY : SHRI FIROZE ANDHARUJINA / DATE OF HEARING : 04.01.2017 / DATE OF PRONOUNCEMENT : 04.01.2017 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 05.5.2016 IS AGAINST THE ORDER OF THE CIT (A) - 17, MUMBAI DATED 29.2.2016 FOR THE ASSESSMENT YEAR 2009 - 2010. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: - THE LD CIT (A) HAVING ACCEPTED AND CONFIRMED THE REWORKING / RECOMPUTATION OF DEDUCTION U/S 80IB BY ALLOCATION OF A PORTION OF COMMON EXPENSES IN ASSESSMENT; HITHERTO NOT DONE BY THE ASSESSEE; HAS ERRED ON FACTS AND CIRCUMSTANCES, IN DELETING THE CORRESPONDING PENALTY WITHOUT APPRECIATING THE FACT THAT SUCH NON - ALLOCATION OF COMMON EXPENSES RESULTED IN EXCESS AND UNDUE BENEFIT TO THE ASSESSEE. 2. BEFORE US, AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BRIEFLY NARRATED THE FACTS OF THE CASE AND MENTIONED THAT THE SOLITARY ISSUE RAISED BY THE REVENUE IN THE APPEAL RELATES TO THE CIT (A)S DECISION I N DELETING THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT IN CONNECTION WITH THE DEDUCTION U/S 80 - IB OF THE ACT. IN THIS REGARD, LD COUNSEL FOR THE ASSESSEE FILED A COPY OF THE ORDER OF THE TRIBUNAL I N THE ASSESSEES OWN CASE [APPEAL ITA NO.3343/M/2013 (AY 2009 - 2010), DATED 29.6.2016] RELATING TO THE ADDITIONS WHICH ARE OF THE SUBJECT MATTER OF PENALTY U/S 271(1)(C) OF THE ACT AND READ OUT THE FOLLOWING: - 2 .......CONSIDERING THE PECULIAR FACTS AND CIRC UMSTANCES OF THE UNDER CONSIDERATION AND RESPECTFULLY FOLLOWING ABOVE DECISION OF THE TRIBUNAL, DELIVERED IN THE CASE OF BLUE STAR (SUPRA), WE DECIDE THE FIRST GROUND OF THE APPEAL IN FAVOUR OF THE ASSESSEE. 3. THE ABOVE DIRECTION WAS GIVEN BY THE TRIBUNA L IN THE CONTEXT OF ALLOCATION OF EXPENSES FOR THE PURPOSE OF COMPUTING THE DEDUCTION U/S 80 - IB OF THE ACT. IN THE ASSESSMENT, AO DEFERRED FROM THE ASSESSEES WAY OF ALLOCATING THE EXPENSES WHICH LEAD TO THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. 4. ON THE ABOVE FACTUAL MATRIX AND ON THE SUBSEQUENT DEVELOPMENTS, LD COUNSEL FOR THE ASSESSEE ARGUED STATING THAT THE CIT (A) DELETED THE PENALTY FOR MANY REASONS AND THEREFORE, THE REVENUE IS IN APPEAL AGAINST THE SAID DECISION OF THE CIT (A). SUBSEQUENTLY , THE ADDITIONS WERE NOW STAND DELETED BY THE ABOVE ORDER OF THE TRIBUNAL. THEREFORE, THE QUESTION OF LEVY OF PENALTY DOES NOT ARISE. FOR THIS REASON ALSO THE PENALTY IS UNSUSTAINABLE THEREFORE, LD AR PRAYED FOR CONFIRMING THE ORDER OF THE CIT (A). 5. W E H E A R D BOTH THE PARTIES AND ON PERUSAL OF THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED DECISION OF THE TRIBUNAL AND THE RELEVANT MATERIAL PLACED BEFORE US. ON PERUSAL OF THE SAID TRIBUNALS ORDER (SUPRA), WE FIND MERIT IN THE LD ARS ARGUM ENT AND PENALTY LEVIED IN THIS CASE IS UNSUSTAINABLE IN LAW. THEREFORE, IN OUR CONSIDERED OPINION, THE DECISION TAKEN BY THE CIT (A) IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY WE ORDER. 6. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH JANUARY, 2017 IMMEDIATELY AFTER COMPLETION OF HEARING. S D / - S D / - ( AMARJIT SINGH ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 04.01.2017 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI