DCIT 1(1), MUMBAI V. RELIANCE ENERGY LTD, MUMBAI

ITA 4704/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1969 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 11-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R N JHA
• Keywords: Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI N.V. VASUDEVAN (JM) & SHRI B. RAMAKOTAIAH (AM) I.T.A. NO.4704/MUM/2009 (ASSESSMENT YEAR: 2004-05) DCIT - 1(1), ROOM NO.579, AAYAKAR BHAVAN, MUMBAI 400 020. VS. M/S. RELIANCE ENERGY LTD. RELIANCE ENERGY CENTRE, SANTACRUZ (E), MUMBAI 400 055 PAN NO.: - AACCR 7446 Q APPELLANT RESPONDENT APPELLANT BY: SHRI. R.N. JHA, DR. RESPONDENT BY: SHRI ARVIND SONDE/ SHRI JITENDRA SANGHAVI, SHRI DIVYESH DALAL DATE OF HEARING: 20.04.2010 DATE OF ORDER: 30.04.2010 O R D E R PER B. RAMAKOTAIAH, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AND IS DIRE CTED AGAINST THE ORDER OF THE CIT(A) - I, MUMBAI, DATED 09.06.2009 F OR THE ASSESSMENT YEAR 2004-05 CANCELLING THE PENALTY U/S.271(1)(C) OF THE INCOME-TAX ACT, 1961. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. ADDL. CIT ERRED IN CANCELING THE PENAL TY IMPOSED UNDER THE PROVISIONS OF SECTION 271(1)(C) R ELATING TO DISALLOWANCE U/S.80IA OF THE ACT, WHEN THE QUANTUM DISALLOWANCE ON THE BASIS OF WHICH THE PENALTY IMPO SED BY THE AO HAS BEEN SET ASIDE BY THE AO HAS BEEN SET AS IDE BY THE TRIBUNAL FOR FRESH DECISION TO BE TAKEN BASED O N THE TRIBUNALS DECISION IN THE CASE OF SRINIVASA CYSTIN E LTD. VS. JCIT REPORTED IN 92 ITR 460 (HYD). 3. BRIEFLY STATED THE ASSESSING OFFICER IN THE COUR SE OF ASSESSMENT PROCEEDINGS DISALLOWED AN AMOUNT OF RS.11,94,893/- PERTAINING TO DISALLOWANCE U/S.14A AND DEDUCTION U/S.80IA AND MAD E AN ADDITION OF RS.11,17,88,865/-. THE ASSESSING OFFICER TOOK THE A MOUNT OF DIFFERENCE BETWEEN COMPUTATION OF INCOME AND THE BOOK PROFIT U /S.115JB BY THE ASSESSEE IN THE ORIGINAL ASSESSMENT AND LEVIED PENA LTY U/S. 271(1)(C). IN VIEW OF RESTORING THE MATTER BACK TO THE ASSESSING OFFICER U/S.80IA, THE CIT(A) CANCELLED THE PENALTY AND ON THE AMOUNT INVO LVED ON THE ADDITION U/S.14A, HE CANCELLED THE PENALTY HOLDING THAT THE DISALLOWANCE U/S.14A DOES NOT CALL FOR ANY PENALTY U/S.271(1)(C). 4. WHILE ACCEPTING DELETION OF PENALTY ON THE ADDIT ION MADE U/S.14A, THE REVENUE HAS PREFERRED APPEAL TO THE ITAT AS INFORME D, TO KEEP THE MATTER ALIVE. WE ARE UNABLE TO UNDERSTAND WHY THE APPEAL W AS PREFERRED WHEN THE QUANTUM ON WHICH THE PENALTY WAS LEVIED NO LONGER E XISTS AND THE ISSUE WAS RESTORED BACK TO THE AO FOR FRESH CONSIDERATION. RE STORATION OF PENALTY DOES NOT ARISE AT ALL AND THE AO WOULD BE FREE TO INITIA TE THE PENALTY PROCEEDINGS, IF WARRANTED. 5. IN VIEW OF THIS, WE AGREE WITH THE CIT(APPEALS) OPINION THAT SINCE THE ADDITION WHICH WAS CONSIDERED AS CONCEALED INCOME F OR THE PURPOSE OF IMPOSING PENALTY U/S.271(1)(C) DOES NOT EXIST, NO P ENALTY COULD BE IMPOSED U/S.271(1)(C) RELATING TO THIS ADDITION. THERE IS NO MERIT IN THE REVENUES APPEAL, ACCORDINGLY AND THE SAME IS DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED ON 30.04.2010 SD/- ( N.V. VASUDEVAN) JUDICIAL MEMBER SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER MUMBAI, DATED 30.04.2010 NEELAM COPY TO: (1) THE APPELLANT, (2) THE RESPONDENT, (3) THE CIT (A)-I CONCERNED, (4) THE CIT, CONCERNED, (5) THE DR, CONCERNED BENCH - D, ITAT, MUMBAI. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI