TMI Blog2014 (1) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalty levied by the A.O. and upheld by the learned CIT(A) for disallowance of provision for cash discount is deleted. Disallowance of provision for Executive Retirement Scheme – Held that:- The matter has been restored to the file of A.O. for deciding the issue afresh in the light of section 35DDA of the Act - the addition made by the A.O. and confirmed by the learned CIT(A) has already been set aside by the Tribunal and the matter has been restored to the file of A.O. for fresh adjudication, the very basis for levy of penalty has ceased to exist - the penalty imposed under the above head is ordered to be deleted. Disallowance for provision of bonus u/s 43B of the Act – Held that:- The decision in Commissioner of Income Tax Vs. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted against the order passed by the Commissioner of Income-tax (Appeals) dated 17.03.2008, u/s. 271(1)(c), in relation to assessment year 2001-2002. 2. The assessee in this appeal has disputed the confirming of penalty levied u/s.271(1)(c) of the Income-tax Act, 1961 to the extent of Rs.97,96,497/-against the penalty levied by the Assessing Officer at Rs.1,00,76,728/-. On the other hand, the Revenue is aggrieved against the order of the CIT(A) for reducing the penalty amount to Rs.97,96,497/- from Rs.1,00,76,728/-. 3. The brief facts of the case are that the assessee filed return of income declaring its income at Rs.1,11,13,20,171/-. The Assessing Officer while making the assessment u/s 143(3) of the I.T.Act, 1961, computed the income o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee before the Tribunal, hence the disallowance was upheld. So far disallowance of Rs.7,08,549/- u/s 40A(2)(b) is concerned, the Tribunal has deleted the said disallowance. In so far as the disallowance of Rs.7,90,267/- u/s 80-IB of the Act is concerned, the Tribunal has partly upheld the disallowance following the view taken in the earlier years. However, regarding denial of deduction u/s 80-IB on certain items of miscellaneous income, the Tribunal has restored the matter to the file of A.O. for a fresh consideration in view of the judgment of the Hon ble Supreme Court in the case of 'Liberty India (2009) 317 ITR 218 (SC). 4. We have heard the learned Representatives of the parties. We will hereby deal with all the issues separately r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rve that the issue was debatable. Merely because the claim of the assessee has not been allowed by the authorities, it cannot be said that the assessee has concealed his particulars of income or has furnished inaccurate particulars of income in this respect. Hence the penalty levied by the A.O. and upheld by the learned CIT(A) for disallowance of provision for cash discount is hereby ordered to be deleted. 4.3 Disallowance of provision for Executive Retirement Scheme. 4.3.1 It may be observed that in quantum proceedings, the matter has been restored to the file of A.O. for deciding the issue afresh in the light of section 35DDA of the Act. Since the addition made by the A.O. and confirmed by the learned CIT(A) has already been set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 36(1)(ii) would apply in any case of bonus paid under the Bonus Act, but the payments made as incentive bonus, attendance bonus, or customary bonus all allowable u/s 37 of the Act on the score that the expenditure was paid wholly exclusively for the purpose of the business. In the case in hand also ld. AR has submitted that the provision for payment of bonus was made out of contractual liabilities and not on account of statutory liability under the Bonus Act. He has further submitted that merely, because the issue was not pressed in the quantum appeal, that does not ipso facto mean that the penalty is attracted in the case. Even though the plea of the assessee has not been accepted in the quantum proceedings or even the issue was not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding denial of deduction u/s 80-IB on certain items of miscellaneous income, the Tribunal has restored the matter to the file of A.O. for a fresh consideration in view of the judgment of the Hon ble Supreme Court in the case of Liberty India (supra). The learned AR could not bring out as to how the levy of penalty was not justified in relation to the disallowance, upheld by the Tribunal. He has prayed that the penalty be deleted in respect of the matter which has been restored back to the file of A.O. for decision afresh. Accordingly, we uphold the levy of penalty for the matter in respect of which the disallowance has been upheld by the Tribunal. However, the matter which has been restored back to the file of A.O. for deciding the issue af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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