DCIT 3(2)(2), MUMBAI V. PEEPUL TREE PROPERTIES P.LTD, MUMBAI

ITA 6350/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6140 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 25-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G PANSARI
• Keywords: Set aside
• Section: 271(1)(c); 260A

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL C BENCH MUMB AI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER & SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO. 6350/MUM/2017 (ASSESSMENT YEAR 2010-11) DCIT-3(2)(2) ROOM NO. 674, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. VS. M/S PEEPUL TREE PROPERTIES PVT. LTD. PODIUM FLOOR, INFINITY IT PARK, 239, BUILDING NO.4, DINDOSHI MALAD(E), MUMBAI-400097. PAN: AAECM6392E APPELLANT RESPONDENT APPELLANT BY : SHRI D.G. PANSARI (DR) RESPONDENT BY : SHRI AMEY WAGLE (AR) DATE OF HEARING : 16.01.2019 DATE OF PRONOUNCEMEN T : 16.01.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY REVENUE IS DIRECTED AGAINST THE ORDE R OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-8, MUMBAI (THE LD. CIT(A) DATE D 03.07.2017 FOR ASSESSMENT YEAR 2010-11. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) WAS RIGHT IN DELETING THE PENALTY LEVIED IN VIEW OF THE DECISION OF THE HONBLE ITAT, MUMBAI IN ITS ORDER DATED 20 TH MAY, 2016 (ITA NO. 6258/M/2013) DELETING THE QUANTUM DISALLOWANCES ON WHICH PENALTY WAS LEVIED, WHICH HAS NOT BEEN ACCEPTED BY THE DEPARTME NT AND APPEAL U/S. 260A HAS BEEN FILED BEFORE THE HONBLE HIGH COURT. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(AP PEALS) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RESTORED. 2. AT THE OUTSET OF HEARING, THE LD. AUTHORIZED REPRES ENTATIVE (AR) OF THE ASSESSEE SUBMITS THAT THE GROUND OF APPEAL RAISED B Y REVENUE IS COVERED IN ITA NO. 6350 MUM 2017-M/S PEEPU L TREE PROPERTIES PVT. LTD. 2 FAVOUR OF ASSESSEE, AS THE ADDITIONS/ DISALLOWANCE ON THE BASIS OF WHICH THE PENALTY UNDER SECTION 271(1)(C) WAS LEVIED HAS ALRE ADY BEEN DELETED BY TRIBUNAL IN APPEAL AGAINST THE QUANTUM ASSESSMENT I N ITA NO. 6258/M/2013 DATED 20.05.2016. THE LD. AR OF THE ASSESSEE FURTHE R SUBMITS THAT LD. CIT(A) DELETED THE PENALTY BY FOLLOWING THE DECISION OF TR IBUNAL ITA NO. 6258/M/2013. 3. ON THE OTHER HAND, THE LD. LD. DEPARTMENTAL REPRESE NTATIVE (DR) FOR THE REVENUE AFTER GOING THROUGH THE ORDER OF TRIBUNAL I N QUANTUM ASSESSMENT, SUBMITS THAT THOUGH THE TRIBUNAL HAS DELETED THE AD DITION IN QUANTUM ASSESSMENT, THE REVENUE HAS NOT ACCEPTED THE ORDER OF TRIBUNAL AND HAS FILED APPEAL BEFORE THE HONBLE BOMBAY HIGH COURT. THE LD DR SUBMITS THAT HE RELY ON THE ORDER OF ASSESSING OFFICER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE NO TED THAT THE IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER MADE ADDITI ON ON ACCOUNT OF DISALLOWANCE OF PROCESSING FEES OF RS. 1.00 CRORE A ND ADDITION ON ACCOUNT OF DISALLOWANCE PRE-PAYMENT PENALTY CHARGES OF RS. 1.3 2 CRORE. THE ASSESSING OFFICER MADE ADDITION/DISALLOWANCE ON THE BASIS OF WHICH THE PENALTY UNDER SECTION 271(1)(C) WAS LEVIED BY ASSESSING OFFICER V IDE HIS ORDER DATED 31.03.2015. WE HAVE NOTED THAT THE TRIBUNAL DELETED BOTH THE ADDITIONS/DISALLOWANCE IN ORDER DATED 20.05.2016 IN ITA NO. 6258/M/2013, THE RELEVANT PART OF ORDER IS EXTRACTED BELOW: ITA NO. 6350 MUM 2017-M/S PEEPU L TREE PROPERTIES PVT. LTD. 3 4.6. WE HAVE GONE THROUGH THE SUBMISSIONS MADE BY BOTH THE SIDES AND ORDERS OF THE LOWER AUTHORITIES AS WELL AS JUDGMENTS RELIE D UPON BEFORE US. IT IS NOTED THAT IT IS NOT IN DISPUTE THAT INTEREST PAID ON IMP UGNED LOANS WAS ALLOWABLE U/S 24(B) OF THE ACT. THUS, THE ONLY ISSUE TO BE DECIDE D BY US IS WHETHER 'PRE- PAYMENT CHARGES' AND 'PROCESSING FEE' SHALL FORM PA RT OF THE WORD 'INTEREST' AS USED IN SECTION 24(B) OF THE ACT. FOR THIS PURPOSE, WE NEED NOT LABOUR MUCH AS THE TERM 'INTEREST' HAS BEEN DEFINED IN SECTION 2(2 8A) AS UNDER: 'INTEREST MEANS INTEREST PAYABLE IN ANY MANNER IN R ESPECT OF ANY MONEYS BORROWED OR DEBT INCURRED (INCLUDING A DEPOSIT, CLA IM OR OTHER SIMILAR RIGHT OR OBLIGATION) AND INCLUDES ANY SERVICE FEE OR OTHE R CHARGE IN RESPECT OF MONEYS OR DEBT INCURRED ' IN RESPECT OF ANY CREDIT FACILITY WHICH HAS NOT BEEN UTILISED;' 4.7. PERUSAL OF THE ABOVE SAID DEFINITION SHOWS TH AT THE TERM INTEREST' HAS BEEN DEFINED IN A MANNER GIVING IT A WIDER SCOPE. IT CLE ARLY SHOWS THAT THE TERM 'INTEREST' SHALL INCLUDE ANY SERVICES FEE OR OTHER CHARGES IN RESPECT OF MONEYS BORROWED AND IT GOES TO THE EXTENT OF SAYING THAT A NY CHARGES IN RESPECT OF ANY CREDIT FACILITIES WHICH HAS NOT BEEN UTILIZED. IF W E CAREFULLY ANALYSE THIS DEFINITION, WE FIND THE ANSWER RIGHT HERE IN THIS D EFINITION. THE 'PROCESSING FEE' CHARGED BY AXIS BANK IS NOTHING BUT SERVICE FEE CHA RGED BY THE BANK AND THEREFORE IT IS CLEARLY ALLOWABLE AS PER PLAIN PROV ISIONS OF THE ACT. AS FAR AS THE PREPAYMENT CHARGES ARE CONCERNED, THESE HAVE BEEN P AID FOR THE LOANS WHICH HAVE BEEN REFUNDED AND THUS NO MORE UTILISED BY THE ASSESSEE. IT HAS BEEN CLEARLY PROVIDED THAT ANY CHARGES INCURRED EVEN FOR ANY CRE DIT FACILITY WHICH HAS NOT BEEN UTILISED SHALL ALSO FORM PART OF THE TERM INT EREST'. EVEN, OTHERWISE, BOTH OF THESE PAYMENTS HAVE BEEN MADE FOR THE PURPOSE OF AV AILING OF THE LOAN AT LOWER INTEREST COST. IT IS FOR THE ASSESSEE TO PLAN ITS F INANCIAL AFFAIRS IN THE BEST POSSIBLE MANNER. IT IS NONE OF THE BUSINESS OF THE REVENUE T O GUIDE THE ASSESSEE OR PUT ANY OBSTACLE IN THE MANAGEMENT OF ITS FINANCIAL AFFAIRS . THE ASSESSEE APPEARS TO HAVE DONE THE RESTRUCTURING OF ITS LOANS AND CHANGED ITS LENDERS FOR THE PURPOSE OF REDUCING ITS INTEREST BURDEN BY AVAILING LOAN FROM THE LENDERS AT LOWER RATE OF INTEREST. THE PREPAYMENT CHARGES AND PROCESSING FEE BORNE BY THE ASSESSEE AT THIS STAGE WERE BE COMPENSATED SUBSEQUENTLY BY PAYMENT O F LOWER AMOUNT OF INTEREST. IN ANY CASE, SO LONG AS THE EXPENSES INCU RRED BY THE ASSESSEE ARE GENUINE ITA NO. 6350 MUM 2017-M/S PEEPU L TREE PROPERTIES PVT. LTD. 4 AND NOT PART OF ANY COLORABLE DEVICE TO MAKE TAX EV ASION, THEN SUCH EXPENSES SHOULD BE ALLOWED UNDER THE RELEVANT PROVISIONS OF THE ACT. 4.8. IT IS NOTED THAT OUR VIEW IS SUPPORTED BY PLET HORA OF JUDGMENTS. IN THE CASE OF PENTAGRAM PROPERTIES PVT. LTD. (SUPRA), THE MUMBAI BENCH OF THE TRIBUNAL WHILE ALLOWING THE CLAIM OF THE ASSESSEE ON ACCOUNT OF PA YMENT OF PROCESSING FEE OBSERVED AS UNDER: 'THE ASSESSEE IS IN APPEAL QUESTIONING THE DECISION OF THE CIT(A) REGARDING THE ALLOWANCE OF PROCESSING FEES. SECTION 24(B) ALL OWS DEDUCTION IN RESPECT OF ANY INTEREST PAYABLE ON CAPITAL BORROWED FOR THE PU RPOSE OF ACQUIRING, CONSTRUCTING, REPAIRING OR RENEWING THE PROPERTY. S ECTION 2(28A)) WHICH WAS INSERTED BY THE FINANCE ACT, 1976, WITH EFFECT FROM 1 ST JUNE 1976 DEFINES 'INTEREST' AS INTEREST PAYABLE IN ANY MANNER IN RES PECT OF ANY MONEYS BORROWED OR DEBT INCURRED (INCLUDING A DEPOSIT, CLA IM OR OTHER SIMILAR RIGHT OR OBLIGATION) AND INCLUDES ANY SERVICE FEE OR OTHE R CHARGE IN RESPECT OF THE MONEYS BORROWED OR DEBT INCURRED OR IN RESPECT OF A NY CREDIT FACILITY WHICH HAS NOT BEEN UTILIZED. IT IS SEEN FROM THE DEFINITI ON THAT EVEN A SERVICE FEE PAID IN RESPECT OF THE MONEYS BORROWED IS INCLUDED IN THE DEFINITION OF 'INTEREST'. THE PROCESSING FEE IS CHARGED BY THE LE NDER SINCE THE PROCESSING OF THE LOAN APPLICATION AND CONNECTED DOCUMENTS INV OLVES A SERVICE RENDERED BY HIM TO THE BORROWER, BY VIRTUE OF THE DEFINITION OF THE WORD 'INTEREST', THE PROCESSING FEE, WHICH PERHAPS MAY NOT OTHERWISE FAL L TO BE CONSIDERED AS INTEREST, IS TO BE TREATED AS INTEREST AND ALLOWED AS A DEDUCTION UNDER SECTION 24(B) OF THE ACT. IF WE MAY SAY, THAT WITH RESPECT, THE CIT(A) WOULD APPEAR TO HAVE LOST SIGHT OF THE FACT THAT IT IS BY DEFINITIO N OF THE WORD 'INTEREST' THAT THE PROCESSING FEE IS TO BE TREATED AS INTEREST AND THE FACT THAT THE PROCESSING IS DONE BEFORE THE GRANT OF THE LOAN CANNOT BE PUT AGA INST THE ASSESSEE IN THE LIGHT OF THE DEFINITION. THE ASSESSEE'S CONTENTIONS ARE ALSO SUPPORTED BY THE ORDER OF THE SINGLE MEMBER, PUNE BENCH IN THE CASE OF CHINTAMANI HATCHERIES (P) LTD. VS. DCIT (2000) 75 ITD 116 (PUN E), (SMC), WHERE IT HAS BEEN HELD THAT PROCESSING FEE FOR OBTAINING A LOAN IS A SERVICE FEE AND HAS TO BE ALLOWED AS INTEREST IN VIEW OF THE DEFINITION IN SECTION 2(28A). THE CIRCULAR NO. 202, DATED 5TH JULY 1976, ISSUED BY TH E CBDT (COPY FILED) WHILE EXPLAINING THE PROVISIONS OF SECTION 2(28A) ALSO CL ARIFY THE POSITION. WE THEREFORE ACCEPT THE ASSESSEE'S CLAIM BASED ON SECT ION 2(28A) AND DIRECT THE ITA NO. 6350 MUM 2017-M/S PEEPU L TREE PROPERTIES PVT. LTD. 5 ASSESSING OFFICER TO ALLOW THE PROCESSING FEE OF RS .55,00,000/- AS DEDUCTION UNDER SECTION 24(B) WHILE COMPUTING THE PROPERTY IN COME .... ' 4.9. SIMILAR VIEW HAS BEEN TAKEN WITH REGARD TO CLA IM OF PREPAYMENT CHARGES BY THE MUMBAI BENCH IN THE CASE OF WINDERMERE PROPER T ICS (P) LTD. (SUPRA) WITH FOLLOWING OBSERVATIONS: WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE ON THE FACT THAT THE AS SESSEE AVAILED LOAN FOR ACQUISITION OF CERTAIN PREMISES, THE INCOME FROM WH ICH WAS SHOWN AND ACCEPTED UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY '. THE ASSESSEE CLAIMED DEDUCTION OF RS.11.05 CRORE U/S 24(B) OF TH E ACT. THE ASSESSING OFFICER DID NOT ALLOW DEDUCTION OF RS.1.56 CRORE PA ID AS PREPAYMENT CHARGES FOR THE CLOSURE OF THE LOAN ACCOUNT WHICH WAS TAKEN FOR ACQUISITION OF PROPERTY FETCHING THE EXTANT HOUSE PROPERTY INCOME. UNDER THESE CIRCUMSTANCES THE QUESTION ARISES AS TO WHETHER SUC H AMOUNT OF PREPAYMENT CHARGES' PAID TO HDFC FOR CLOSURE OF LOAN ACCOUNT I S DEDUCTIBLE U/ S 24(B) OF THE ACT. THIS PROVISION PROVIDES THAT: 'WHERE THE P ROPERTY HAS BEEN ACQUIRED, CONSTRUCTED, REPAIRED, RENEWED OR RECONSTRUCTED WIT H BORROWED CAPITAL, THE AMOUNT OF ANY INTEREST PAYABLE ON SUCH CAPITAL' SHA LL BE ALLOWED AS DEDUCTION IN THE COMPUTATION OF INCOME UNDER THE HE AD 'INCOME FROM HOUSE PROPERTY'. THE TERM 'INTEREST' HAS BEEN DEFINED IN SECTION 2(28A) TO MEAN: 'INTEREST PAYABLE IN ANY MANNER IN RESPECT OF ANY M ONEYS BORROWED OR DEBT INCURRED .... AND INCLUDES ANY SERVICE FEE OR .OTHE R CHARGE IN RESPECT OF THE MONEYS BORROWED OR DEBT INCURRED OR IN RESPECT OF A NY CREDIT FACILITY WHICH HAS NOT BEEN UTILIZED'. THE DEFINITION OF INTEREST U/S 2(28A) MAKES IT MANIFEST THAT IT HAS BASICALLY TWO COMPONENTS, VIZ., FIRSTLY , THE AMOUNT WITH NOMENCLATURE OF INTEREST FOR MONEYS BORROWED AND SE CONDLY, THE AMOUNT PAID BY WHATEVER NAME CALLED IN RESPECT OF THE MONEY BOR ROWED OR DEBT INCURRED. THE SECOND CATEGORY MAY ALSO ENCOMPASS ANY CHARGE P AID FOR NOT UTILIZING THE CREDIT FACILITY. WHEN WE INCORPORATE THE DEFINI TION OF 'INTEREST' IN SECTION 24(B), THE POSITION WHICH EMERGES IS THAT NOT ONLY THE AMOUNT PAID DESIGNATED AS INTEREST BUT ALSO ANY OTHER AMOUNT PA ID BY WHATEVER NAME CALLED IN RELATION TO SUCH DEBT INCURRED ALSO QUALI FIES FOR DEDUCTION. 4. ADVERTING TO THE FACTS OF THE INSTANT CASE, IT IS N OTICED THAT THE ASSESSEE ITA NO. 6350 MUM 2017-M/S PEEPU L TREE PROPERTIES PVT. LTD. 6 OBTAINED LOAN FROM HDFC LIMITED FOR ACQUISITION OF PROPERTY. LATER ON IT ARRANGED THE MONEY FROM OTHER SOURCES AND REPAID TH E LOAN WHICH WAS TAKEN FOR ACQUISITION OF PROPERTY. THE BANK ACCEPTED THE EARLY REPAYMENT OF LOAN ON RECEIPT OF PREPAYMENT CHARGES. BY SUCH REPAYMENT , THE ASSESSEE MANAGED TO WIPE OUT ITS INTEREST LIABILITY IN RESPECT OF TH E LOAN, WHICH WOULD HAVE OTHERWISE QUALIFIED FOR DEDUCTION U/ S 24(B) DURING THE CONTINUATION OF LOAN. IT IS OBVIOUS THAT THESE PREPAYMENT CHARGES HAVE LI VE AND DIRECT LINK WITH THE OBTAINING OF LOAN WHICH WAS AVAILED FOR ACQUISITION OF PROPERTY. IT IS BEYOND OUR COMPREHENSION AS TO HOW THE AMOUNT PAID AS INTE REST FOR THE LOAN TAKEN IS ALLOWABLE AS DEDUCTION BUT THE AMOUNT PAID AS PR EPAYMENT CHARGES OF THE VERY SAME LOAN IS NOT DEDUCTIBLE. IN OUR CONSIDERED OPINION THE PAYMENT OF SUCH PREPAYMENT CHARGES CANNOT BE CONSIDERED AS DE HORS THE LOAN OBTAINED FOR ACQUISITION OR CONSTRUCTION OR REPAIR ETC. OF T HE PROPERTY ON WHICH INTEREST IS DEDUCTIBLE U/S 24 (B) OF THE ACT. BOTH THE DIRECT INTEREST AND PREPAYMENT CHARGES ARE SPECIES OF THE TERM 'INTERES T'. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER ON THIS ISSUE AND ORDER FOR THE GRANT OF DEDUCTION.' 4.10. SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE DE LHI HIGH COURT IN THE CASE OF GUJARAT GUARDIAN LTD. (SUPRA). SIMILAR VIEW HAS BEE N TAKEN IN FEW OTHER CASES ALSO AS RELIED UPON BY LD. COUNSEL. 4.11. IN THE CASE OF HADDOCK PROPERTIES PVT. LTD., AS WAS RELIED UPON THE LOWER AUTHORITIES, LOAN PROCESSING CHARGES WERE DISALLOWE D BY THE AO AND THE ACTION OF THE AO WAS UPHELD BY THE BENCH. BUT, IF WE READ THE JUDGMENT FULLY, WE FIND THAT FACTS OF THE SAID CASE ARE CLEARLY DIFFERENT. IN TH E SAID CASE, THE DISALLOWANCE WAS MADE MAINLY FOR THE REASON THAT PROCESSING CHARGES WERE PAID ON ACCOUNT OF ISSUANCE OF DEBENTURES AND HON 'BLE BENCH WHILE DEC IDING THIS ISSUE CLEARLY MADE OUT A DISTINCTION BY MENTIONING THAT PROCESSIN G CHARGES WERE NOT PAID FOR OBTAINING LOAN AMOUNT. THE RELEVANT OBSERVATIONS OF THE JUDGMENT ARE REPRODUCED BELOW: 'THEREFORE) THESE PROCESSING CHARGES IN OUR VIEW AR E NOT PAID FOR OBTAINING FUNDS OR LOAN AMOUNT. FURTHER THE DEBENTURE ISSUED BY THE ASSESSEE CANNOT BE EQUATED WITH THE DIRECT LOAN FOR ACQUIRING THE P ROPERTY IN QUESTION BUT THE FUNDS RAISED THROUGH THE DEBENTURES WERE PARTLY APP LIED FOR REPAYMENT OF LOAN TAKEN FOR ACQUISITION OF THE PROPERTY. ITA NO. 6350 MUM 2017-M/S PEEPU L TREE PROPERTIES PVT. LTD. 7 10. AS REGARDS THE DECISIONS RELIED UPON BY THE LEA RNED AR ON THE POINT THAT ANY CHARGES IN RESPECT OF MONEY BARROWED BY THE ASS ESSEE WOULD FALL IN THE DEFINITION OF INTEREST. IT IS PERTINENT TO NOTE THA T IN ALL THOSE CASES THE CHARGES WERE EITHER PAID FOR TAKING LOAN FOR ACQUIRING THE PROPERTIES OR FOR RESTRUCTURING OF LOAN WITH THE OBJECT TO TAKE SOME ADVANTAGE OF INTEREST LIABILITY OR SOME FINANCIAL LEVERAGE. THEREFORE) TH E FACTS OF THE CASE IN HAND ARE DISTINGUISHABLE BECAUSE THE PROCESSING CHARGES WERE NOT PAID FOR OBTAINING LOAN OR RESTRUCTURING OF LOAN BUT FOR ISS UE OF DEBENTURE AND ONLY THE PART OF THE FUNDS RECEIVED WERE UTILIZED FOR RE PAYMENT OF THE LOAN. ACCORDINGLY, WE ARE OF THE VIEW THAT THE PROCESSING CHARGES FOR ISSUE OF DEBENTURE CANNOT BE TREATED AS INTEREST PAID ON DEB ENTURE AND CONSEQUENTLY CANNOT BE ALLOWED AS A DEDUCTION U/S 24(B). 4.11. THUS, PERUSAL OF THE ABOVE CLEARLY SHOWS THAT THE BENCH HAS RATHER SUPPORTED THE CASE OF THE ASSESSEE BY OBSERVING THA T IN CASE PROCESSING CHARGES WOULD HAVE BEEN PAID FOR OBTAINING LOAN, THEN, THE SAME WOULD HAVE BEEN INDEED ALLOWABLE. THUS, IN OUR CONSIDERED VIEW, THE LEGAL POSITION IS CLEAR THAT THESE PAYMENTS ARE ALLOWABLE U/S 24(B) AND THEREFORE, AO IS DIRECTED TO GRANT THE BENEFIT OF THE SAME THE DISALLOWANCE MADE BY THE AO IS DIRECTED TO BE DELETED. THUS, GROUND NOS. 1 TO 6 ARE TREATED AS ALLOWED. 5. CONSIDERING THE DECISION OF TRIBUNAL, WHEREIN THE A DDITION/DISALLOWANCE ON THE BASIS OF WHICH THE PENALTY WAS LEVIED HAS ALREA DY BEEN DELETED. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF TRIBUNAL, WE AFFIRM THE ORDER OF LD. CIT(A) IN DELETING THE PENA LTY LEVIED BY ASSESSING OFFICER UNDER SECTION 271(1)(C) DATED 31.03.2015. 6. THE SUBMISSION OF LD. DR THAT THE REVENUE HAS FILED APPEAL BEFORE THE HONBLE BOMBAY HIGH COURT AGAINST THE ORDER OF TRIB UNAL DATED 20.05.2016 HAS NO LEGAL FORCE AS THERE IS NO STAY OF OPERATION OF ORDER OF TRIBUNAL. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF T RIBUNAL, THE ORDER OF LD. ITA NO. 6350 MUM 2017-M/S PEEPU L TREE PROPERTIES PVT. LTD. 8 CIT(A) IS AFFIRM. HOWEVER, IN CASE THE ORDER OF TRI BUNAL IS REVERSED BY HONBLE HIGH COURT, THE ASSESSING OFFICER/REVENUE W OULD BE AT LIBERTY TO PROCEED IN ACCORDANCE WITH LAW. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/ 01/2019. SD/ SD/- RAMIT KOCHAR PAWAN SINGH ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 16.01.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR C BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI