JET AIRWAYS (INDIA ) LTD, MUMBAI V. PR CIT 5, MUMBAI

ITA 3792/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0108 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2010-2011
• Appeal Filed On: 02-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHARI
• Keywords: Principle of natural justice; Initiation of penalty proceedings; Validity of assessment
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J, MUMBAI BEFORE S/SHRI B R BASKARAN, AM & C N PRASAD, JM ITA NO.3792/MUM/2016 ASSESSMENT YEAR : 2010-11 JET AIRWAYS (INDIA) LTD., SHIROYA CENTRE SAHAR AIRPORT ROAD, ANDHERI (E) MUMBAI 400 099 PAN AAACJ0920H VS. PRINCIPAL CIT - 5 MUMBAI (APPELLANT) RESPONDENT) APPELLANT BY : SHRI VIJAY MEHTA RESPONDENT BY : SHRI ALOK JOHARI DATE OF HEARING : 17.04 .201 7 DATE OF PRONOUNCEMENT : 23 .0 6 . 201 7 O R D E R THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE VALIDITY OF ASSESSMENT ORDER PASSED BY THE PRINCIPAL CIT U/S. 263 OF THE A CT FOR ASSESSMENT YEAR 2010-11. 2. THE ASSESSMENT FOR A.Y. 2010-11 WAS COMPLETED IN THE HANDS OF THE ASSESSEE BY THE ASSESSING OFFICER U/S. 143(3) OF TH E ACT ON 06.03.2014. THE LEARNED PRINCIPAL CIT, UPON EXAMINATION OF THE RECO RD, NOTICED THAT THE ASSESSING OFFICER HAS NOT DISALLOWED PROVISION OF 3.15 CRORES RELATING TO REDELIVERY OF AIRCRAFT. FURTHER, HE HAS ALSO NOTICED THAT THE ASSESSING OFF ICER HAS NOT INITIATED PENALTY PROCEEDINGS U/S. 271E OF THE ACT FOR REPAYING LOANS OTHERWISE THAN BY WAY OF ACCOUNT PAYEE CHEQUES. ACCORDINGLY, HE CONSIDERED THE ASSESSMENT ORDER AS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE R EVENUE AND INITIATED REVISION PROCEEDINGS U/S. 263 OF THE ACT. ITA NO.3792/MUM/2016 JET AIRWAYS (INDIA)LTD 2 3. AFTER HEARING THE ASSESSEE, THE LEARNED PRINCIPA L CIT SET ASIDE BOTH THE ISSUES TO THE FILE OF THE ASSESSING OFFICER AND DIR ECTED HIM TO PASS ASSESSMENT ORDER DE-NOVO. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFOR E THE TRIBUNAL. 4. THE FIRST ISSUE RELATES TO CLAIM OF THE ASSESSEE RELATING TO PROVISION OF 3.15 CRORES MADE FOR REDELIVERY OF AIRCRAFT. THE LEARNE D AR SUBMITTED THAT THE ASSESSEE HAS TAKEN CERTAIN AIRCRAFTS ON LEASE. AFTER EXPIRY OF THE LEASE PERIOD, THE ASSESSEE IS REQUIRED TO REDELIVER THE AIRCRAFT BY CARRYING OUT NECESSARY REPAIRS IN ORDER TO RESTORE THE AIRCRAFT TO THE SAME CONDITION, IN WHIC H IT WAS TAKEN ON LEASE. THE ASSESSEE USUALLY ESTIMATES THE AMOUNT OF EXPENSES T HAT WOULD BE INCURRED ON REPAIRING THE AIRCRAFT AND CREATES PROVISION FOR TH E SAID ESTIMATED AMOUNT BY CREATING PROVISION EVERY YEAR OVER THE LEASE PERIOD . HE SUBMITTED THAT THE ASSESSING OFFICER CONSIDERED THE CLAIM OF THE ASSES SEE UNDER THE HEAD REDELIVERY OF AIRCRAFT AS CONTINGENT LIABILITY IN THE EARLIER YEA RS AND, ACCORDINGLY, DISALLOWED THE SAME. HOWEVER, THE ITAT HAS ALLOWED THE CLAIM OF T HE ASSESSEE BY HOLDING THAT THE PROVISION OF EXPENSES SO CLAIMED BY THE ASSESSEE IS NOT CONTINGENT LIABILITY. THE LEARNED AR FURTHER SUBMITTED THAT THE ASSESSING OFF ICER HAS CALLED FOR ACTUAL EXPENSES INCURRED ON REDELIVERY IN THE LAST SEVEN Y EARS, MEANING THEREBY, HE HAS EXAMINED THE CLAIM OF THE ASSESSEE DURING THE COURS E OF ASSESSMENT PROCEEDINGS. THE ASSESSEE HAS FURNISHED THE SAME VIDE ITS LETTER DATED 18.03.2013. 5. THE LEARNED AR SUBMITTED THAT THE ASSESSING OFFI CER HAS EXAMINED THIS ISSUE AND HAS APPLIED HIS MIND ON THIS ISSUE. HENCE, THE LEARNED PRINCIPAL CIT IS PRECLUDED FROM REVISING THE ASSESSMENT ORDER ON THI S GROUND. THE LEARNED AR SUBMITTED THAT THE ASSESSEE MADE A PROVISION OF ` .3.15 CRORES DURING THE YEAR ITA NO.3792/MUM/2016 JET AIRWAYS (INDIA)LTD 3 UNDER CONSIDERATION AND THIS ACCOUNT WAS ENHANCED B Y ANOTHER ` 3.93 CRORES ON ACCOUNT OF EXCHANGE RATE FLUCTUATION. THUS, THE AG GREGATE AMOUNT DEBITED TO THIS ACCOUNT WAS ` .7.08 CRORES. THE ASSESSEE HAS USED THE PROVISION DURING THE YEAR UNDER CONSIDERATION TO THE EXTENT OF ` .7.52 CRORES AND, HENCE, THIS ACCOUNT HAS RESULTED IN A CREDIT BALANCE OF ` .0.44 CRORES. THE ASSESSEE HAS OFFERED THIS AMOUNT OF ` 0.44 CRORES AS ITS INCOME DURING THE YEAR UNDER CO NSIDERATION. THESE DETAILS HAVE BEEN TABULATED AS UNDER:- PARTICULARS AMOUNT (IN RS.) ADDITIONAL PROVISIONS DURING THE YEAR (NET) 3,15,02,264 ADD : ADJUSTMENT ON ACCOUNT OF EXCHANGE FLUCTUATION CONSEQUENT TO RESTATEMENT OF LIABILITIE S 3,93,86,671 TOTAL 7,08,88,935 LESS :- AMOUNT OF PROVISIONS USED DURING THE YEAR 7,52,93,463 NET CREDIT TO PROFIT & LOSS ACCOUNT (44,04,529) SINCE THE CLAIM OF THE ASSESSEE HAS BEEN ALLOWED BY THE TRIBUNAL, THE ASSESSEE HAS RIGHTLY OFFERED THE AMOUNT OF ` 44 LACS AS ITS INCOME. HE FURTHER SUBMITTED THAT THE HONBLE BOMBAY HIGH COURT HAS HELD IN THE CASE OF B ANK OF BARODA VS. H C SHRIVATSAVA AND ANOTHER (2002) 256 ITR 385 THAT THE ASSESSING OFFICER IS BOUND TO FOLLOW THE JUDGMENT OF THE TRIBUNAL IN ITS TRUE LET TER AND SPIRIT. IT IS NECESSARY FOR JUDICIAL UNITY AND DISCIPLINE THAT ALL THE AUTHORIT IES BELOW THE TRIBUNAL ACCEPT AS BINDING THE JUDGMENT OF THE TRIBUNAL. SINCE THE ASSESSING OFFICER DID NOT MAKE DISALLOWANCE AS PER THE DECISION RENDERED BY THE IT AT IN THE ASSESSEES OWN CASE, THE LD A.R SUBMITTED THAT THE ASSESSMENT ORDER CANN OT BE FOUND FAULT WITH. ITA NO.3792/MUM/2016 JET AIRWAYS (INDIA)LTD 4 6. HE FURTHER SUBMITTED THAT THE PROVISION CLAIM ED BY THE ASSESSEE, IF DISALLOWED, THEN THE PROVISION REVERSED BY THE ASSESSEE SHOULD ALSO BE EXCLUDED, IN WHICH CASE THERE WILL BE NO REVENUE LOSS, MEANING THEREBY, NO PREJUDICE SHALL BE CAUSED TO THE REVENUE. 7. WITH REGARD TO THE SECOND ISSUE RELATING TO INIT IATION OF PENALTY PROCEEDINGS U/S. 271E OF THE ACT, THE LEARNED AR SUBMITTED THAT THE ASSESSING OFFICER DID NOT LEVY PENALTY U/S. 271E OF THE ACT AFTER CONSIDERING THE FACTS OF THE CASE AND, HENCE, THIS ISSUE HAS BECOME ACADEMIC. 8. THE LEARNED DR SUBMITTED THAT THE PROFIT AND LOS S ACCOUNT OF THE ASSESSEE DOES NOT SHOW THE CREDIT OF RS.0.44 CRORE AND, HENC E, THE CLAIM OF THE LEARNED AR REQUIRES VERIFICATION. HE FURTHER SUBMITTED THAT T HE ASSESSING OFFICER DID NOT EXAMINE ACTUAL EXPENDITURE INCURRED AGAINST THE PRO VISION AND HENCE HIS EXAMINATION CANNOT BE CONSIDERED TO BE ADEQUATE. F URTHER THE ASSESSING OFFICER DID NOT DISCUSS ABOUT THIS CLAIM OF THE ASSESSMENT ORDER AND HENCE IT IS NOT CLEAR AS TO WHETHER THE AO APPLIED HIS MIND ON THIS ISSUE OR NOT. THE LEARNED DR PLACED HIS RELIANCE ON THE DECISION RENDERED BY THE CO-ORDINAT E BENCH IN THE CASE OF HORIZON INVESTMENT CO. LTD (ITA NO.1593/MUM/2013 DATED 27-0 6-2014), WHEREIN IT IS HELD THAT THE APPLICATION OF MIND ON THE PART OF THE ASS ESSING OFFICER SHOULD BE DEMONSTRATED. HE FURTHER SUBMITTED THAT THE ASSESS ING OFFICER, IN THE INSTANT CASE, DID NOT EXAMINE THE ISSUE IN PROPER PERSPECTIVE AND HENCE IN VIEW OF THE EXPLANATION 2 TO SEC. 263 INSERTED BY FINANCE ACT, 2015 W.E.F 1.6.2015, WHICH HAS BEEN HELD TO HAVE RETROSPECTIVE OPERATION BY THE CO -ORDINATE BENCH OF ITAT IN THE CASE OF M/S CROMPTON GREAVES LTD VS. CIT (ITA NO.19 94/MUM/2013 DATED 01-02- ITA NO.3792/MUM/2016 JET AIRWAYS (INDIA)LTD 5 2016), THE ASSESSMENT ORDER SHALL BE DEEMED TO BE E RRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. HE FURTHER SUBMITTED THAT THE ASSESSEE HAS GIVEN ONLY PRIMARY DETAILS AND THE SAME HAS BEEN ACCEPTED BY T HE ASSESSING OFFICER WITHOUT EXAMINATION. HENCE, IT CANNOT BE CONSIDERED TO BE A PROPER ENQUIRY. 9. IN THE REJOINDER, THE LEARNED AR SUBMITTED THAT THE AMOUNT OF 0.44 CRORES HAS NOT BEEN SHOWN IN THE CREDIT SIDE OF THE PROFIT AND LOSS ACCOUNT, BUT REDUCED FROM THE EXPENSES. HE FURNISHED A WORKING SHEET TO SUPPORT HIS CONTENTIONS. HE SUBMITTED THAT THE ASSESSING OFFICER HAS ALSO BEEN DISALLOWING ONLY THE NET AMOUNT OF PROVISIONS EVERY YEAR. DURING THE YEAR UNDER CO NSIDERATION, THE NET AMOUNT OF PROVISIONS HAS WORKED TO A NEGATIVE FIGURE AND, HEN CE, THE ASSESSING OFFICER DID NOT CONSIDER THE SAME. BUT AS PER THE POLICY ADOPTED B Y THE ASSESSING OFFICER, THIS SHOULD HAVE BEEN EXCLUDED FROM THE INCOME. 10. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD. BEFORE GOING INTO THE MERITS OF THE ISSUE, WE WOULD LIKE TO DISCUSS A BOUT THE LEGAL POSITION WITH REGARD TO THE POWER OF LEARNED PRINCIPAL CIT TO INVOKE REV ISION PROCEEDINGS UNDER SECTION 263 OF THE ACT. THE SCOPE OF REVISION PROCEEDINGS INITIATED UNDER SECTION 263 OF THE ACT WAS CONSIDERED BY HON'BLE BOMBAY HIGH COURT, IN THE CASE OF GRASIM INDUSTRIES LTD. V CIT (321 ITR 92) BY TAKING INTO ACCOUNT THE LAW LAID DOWN BY THE HON'BLE SUPREME COURT. THE RELEVANT OBSERVATIONS ARE EXTRA CTED BELOW: SECTION 263 OF THE INCOME-TAX ACT, 1961 EMPOWERS TH E COMMISSIONER TO CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDINGS UNDER THE ACT AND, IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN, BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE, TO PASS AN ORDER UPON HEARING THE ASSESSEE AND AFTER A N ENQUIRY AS IS NECESSARY, ENHANCING OR MODIFYING THE ASSESSMENT OR CANCELLING THE ITA NO.3792/MUM/2016 JET AIRWAYS (INDIA)LTD 6 ASSESSMENT AND DIRECTING A FRESH ASSESSMENT. THE KE Y WORDS THAT ARE USED BY SECTION 263 ARE THAT THE ORDER MUST BE CONS IDERED BY THE COMMISSIONER TO BE ERRONEOUS IN SO FAR AS IT IS PR EJUDICIAL TO THE INTERESTS OF THE REVENUE. THIS PROVISION HAS BEEN INTERPRETED BY THE SUPREME COURT IN SEVERAL JUDGMENTS TO WHICH IT IS N OW NECESSARY TO TURN. IN MALABAR INDUSTRIAL CO. LTD. V. CIT [2000 ] 243 ITR 83, THE SUPREME COURT HELD THAT THE PROVISION CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED B Y THE ASSESSING OFFICER AND IT IS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WILL BE ATTRACTED. THE SUPREME COURT HELD THAT AN INCOR RECT ASSUMPTION OF FACT OR AN INCORRECT APPLICATION OF LAW, WILL SATIS FY THE REQUIREMENT OF THE ORDER BEING ERRONEOUS. AN ORDER PASSED IN VIOLA TION OF THE PRINCIPLES OF NATURAL JUSTICE OR WITHOUT APPLICATION OF MIND, WOULD BE AN ORDER FALLING IN THAT CATEGORY. THE EXPRESSION PREJUDICI AL TO THE INTERESTS OF THE REVENUE, THE SUPREME COURT HELD, IT IS OF WIDE IMP ORT AND IS NOT CONFINED TO A LOSS OF TAX. WHAT IS PREJUDICIAL TO T HE INTEREST OF THE REVENUE IS EXPLAINED IN THE JUDGMENT OF THE SUPREME COURT (HEADNOTE) : THE PHRASE PREJUDICIAL TO THE INTERESTS OF THE RE VENUE HAS TO BE READ IN CONJUNCTION WITH AN ERRONEOUS ORDER PA SSED BY THE ASSESSING OFFICER. EVERY LOSS OF REVENUE AS A CON SEQUENCE OF AN ORDER OF THE ASSESSING OFFICER, CANNOT BE TREATE D AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, FOR E XAMPLE, WHEN AN INCOME-TAX OFFICER ADOPTED ONE OF THE COURSES PE RMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE, OR WH ERE TWO VIEWS ARE POSSIBLE AND THE INCOME-TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CA NNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE IN TERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY THE INCOME-TAX OFF ICER IS UNSUSTAINABLE IN LAW. THE PRINCIPLE WHICH HAS BEEN LAID DOWN IN MALABAR I NDUSTRIAL CO. LTD. [2000] 243 ITR 83 (SC) HAS BEEN FOLLOWED AND EXPLAI NED IN A SUBSEQUENT JUDGMENT OF THE SUPREME COURT IN CIT V . MAX INDIA LTD. [2007] 295 ITR 282. 11. WE SHALL TAKE UP THE FIRST ISSUE ON WHICH THE R EVISION ORDER WAS PASSED. THE LEARNED PRINCIPAL CIT HAS TAKEN THE VIEW THAT THE D EDUCTION CLAIMED UNDER THE HEAD PROVISION FOR REDELIVERY OF AIRCRAFT IS NOT ALLO WABLE AS DEDUCTION AND, ACCORDINGLY, PASSED THE IMPUGNED REVISION ORDER SETTING ASIDE TH E ASSESSMENT ORDER AND ITA NO.3792/MUM/2016 JET AIRWAYS (INDIA)LTD 7 DIRECTING THE ASSESSING OFFICER TO PASS THE ORDER DE-NOVA. IT IS A WELL SETTLED PRINCIPLE OF LAW THAT, IF THE ASSESSING OFFICER HAS TAKEN A POSSIBLE VIEW, THEN THE ASSESSMENT ORDER CANNOT BE CONSIDERED TO BE PREJUDI CIAL TO THE INTEREST OF THE REVENUE. IT IS ALSO WELL SETTLED PRINCIPLE THAT, I N ORDER TO INVOKE THE PROVISIONS OF SEC. 263, THE LEARNED CIT IS REQUIRED TO SHOW THAT THE ORDER IS NOT ONLY ERRONEOUS BUT ALSO PREJUDICIAL TO THE INTERESTS OF THE REVENU E. 12. THE LEARNED AR SUBMITTED THAT THE ASSESSING OFF ICER HAD MADE IDENTICAL DISALLOWANCE OF THE IDENTICAL CLAIM MADE IN THE EAR LIER YEARS. HE FURTHER SUBMITTED THAT THE SAID CLAIM WAS ALLOWED BY THE TRIBUNAL IN ITA NOS. 4087/MUM/2000, 3691/MUM/2002, 3201/MUM/2003, 6084/MUM/2003 AND 739 0/MUM/2004 RELATING TO ASSESSMENT YEARS 1997-98 TO 2001-02. THE LEARNE D AR ALSO STATED THAT IDENTICAL DISALLOWANCE MADE IN AY 2002-03 TO 2007-08 HAS BEEN ALLOWED BY THE TRIBUNAL. THUS, WE NOTICE THAT THIS ISSUE HAS BEEN A RECURRIN G ISSUE IN THE PAST AND THE SAID CLAIM HAS BEEN ALLOWED AT ITAT LEVEL. 13. SINCE THE IMPUGNED CLAIM HAS BEEN ALLOWED BY TH E TRIBUNAL, IT WAS CONTENDED THAT THE ASSESSING OFFICER DID NOT PREFER TO DISALLOW THE CLAIM MADE UNDER THE HEAD PROVISION FOR REDELIVERY OF AIRCRAF T. IT WAS ALSO SUBMITTED THAT THE HONBLE JURISDICTIONAL BOMBAY HIGH COURT HAS HELD I N THE CASE OF BANK OF BARODA (SUPRA) THAT THE DECISION OF ITAT IS BINDING ON THE ASSESSING OFFICER. ACCORDINGLY, IT WAS CONTENDED THAT THE ORDER PASSED BY THE ASSESSIN G OFFICER CANNOT BE CONSIDERED TO BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE, SINCE IT HAS FOLLOWED THE DECISION RENDERED BY ITAT. ITA NO.3792/MUM/2016 JET AIRWAYS (INDIA)LTD 8 14. WE FIND MERIT IN THE SAID CONTENTIONS OF THE LEARNED AR. SINCE THE CLAIM OF THE ASSESSEE HAS BEEN HELD TO BE ALLOWABLE BY THE I TAT IN THE EARLIER YEARS, IN OUR CONSIDERED VIEW, NON-DISALLOWANCE OF THE SAME WOULD NOT MAKE THE ASSESSMENT ORDER AN ERRONEOUS ONLY, SINCE THE SAME RESULTS IN A POSSIBLE VIEW, THAT TOO, BACKED BY THE ORDER PASSED BY THE TRIBUNAL. THE LEARNED A R INVITED OUR ATTENTION TO THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER FO R ASSESSMENT YEAR 2014-15 IN ORDER TO SUBSTANTIATE HIS CONTENTION THAT THE ASSES SING OFFICER HAS BEEN DISALLOWING ONLY THE NET AMOUNT OF PROVISION. IF THAT BE THE C ASE, THE NET AMOUNT OF PROVISION HAS WORKED TO A NEGATIVE FIGURE OF 0.44 CRORE DURIN G THE YEAR UNDER CONSIDERATION AND HENCE NO DISALLOWANCE IS REQUIRED TO BE MADE. 15. THIS ISSUE CAN BE LOOKED FROM ANOTHER ANGLE ALS O. IT IS THE CASE OF THE REVENUE THAT THE PROVISION MADE BY THE ASSESSEE IS REQUIRED TO BE DISALLOWED. IF IT IS CONSIDERED TO BE CORRECT FOR A MOMENT, THEN THE REVERSAL OF THE PROVISION IS NOT TAXABLE. DURING THE YEAR UNDER CONSIDERATION, THE TOTAL PROVISION MADE IS RS.7.08 CRORES AND THE AMOUNT REVERSED IS RS.7.52 CRORES. HENCE, DISALLOWANCE OF THE PROVISION AMOUNT OF RS.7.08 CRORES AND REMOVAL OF T HE REVERSAL AMOUNT OF RS.7.52 CRORES OFFERED BY THE ASSESSEE WOULD RESULT IN REMO VAL OF THE NET AMOUNT OF RS.0.44 CRORE, IN WHICH CASE, THERE WOULD BE NO PREJUDICE C AUSED TO THE REVENUE. UNDER THIS REASONING ALSO, IT CANNOT BE HELD THAT THE ASS ESSMENT ORDER WAS PREJUDICIAL TO THE INTEREST OF THE REVENUE. IF THE PROVISION IS A LLOWED, THEN THE ACTUAL EXPENDITURE EQUAL TO THE AMOUNT OF THE PROVISION, IF IT HAS NOT BEEN DEBITED TO PROFIT AND LOSS ACCOUNT SHOULD BE ALLOWABLE AS DEDUCTION. HENCE, O N THIS COUNT ALSO IT WOULD RESULT IN TAX NEUTRAL POSITION. WE NOTICE THAT THE LEARNED PRINCIPAL CIT HAS FAILED TO ITA NO.3792/MUM/2016 JET AIRWAYS (INDIA)LTD 9 PROPERLY APPRECIATE THE FACTS SURROUNDING THE ISSUE FROM THESE ANGLES, WHICH DEMONSTRATES THAT NO PREJUDICE IS CAUSED TO THE REV ENUE. 16. THE LEARNED DR CONTENDED THAT THE ACTUAL EXPENS ES INCURRED AGAINST THE PROVISION MADE BY THE ASSESSING OFFICER HAVE NOT BE EN EXAMINED BY THE ASSESSING OFFICER. THIS CONTENTION HAS TO BE REJECTED, SINCE THE IMPUGNED REVISION ORDER PASSED BY LEARNED PRINCIPAL CIT IS NOT CONCERNED AB OUT ACTUAL EXPENSES. FURTHER, WE NOTICE THAT THE ASSESSEE HAS FURNISHED THE DETAI LS OF ACTUAL DELIVERY CHARGES INCURRED BY THE ASSESSEE FOR THE LAST SEVEN YEARS. 17. IN VIEW OF THE FOREGOING DISCUSSIONS, WE ARE UN ABLE TO SUSTAIN THE ORDER PASSED BY LEARNED PRINCIPAL CIT ON THIS ISSUE. 18. THE NEXT ISSUE RELATES TO THE NON-INITIATION OF PENALTY PROCEEDINGS U/S 271E OF THE ACT. THE LEARNED AR SUBMITTED THAT THE ASSE SSING OFFICER DID NOT IMPOSE PENALTY IN THE SET ASIDE PROCEEDINGS AND HE HAS DRO PPED THE PENALTY PROCEEDINGS. IN THIS VIEW OF THE MATTER, WE ARE NOT INCLINED TO DEAL WITH THIS ISSUE AS THE SAME WOULD BE ACADEMIC IN NATURE. 19. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 3 RD JUNE 2017 SD/- SD/- (C N PRASAD ) (B R BASKARAN) JUDICIAL MEMBER ACCOU NTANT MEMBER MUMBAI, DATED : 23 RD JUNE, 2017. SA ITA NO.3792/MUM/2016 JET AIRWAYS (INDIA)LTD 10 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE C I T(A), MUMBAI. 4. THE C I T 5. THE DR, J BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI