TMI Blog2012 (1) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... The only issue in this appeal of the assessee is regarding penalty imposed u/s 271(1)(c) of the Act. The Ld. Counsel for the assessee submitted that in the quantum appeal of the assessee for the relevant assessment year the assessment was set aside to the file of the A.O. for making de novo assessment and accordingly, the present penalty imposed is liable to be cancelled. The Ld. D.R. could not controvert the submission of the Ld. Counsel for the assessee. 3. We have considered the rival submissions. In view of the fact that in the quantum appeal of the assessee, the assessment has been set aside to the file of the A.O. for making de novo assessment, we hold that the penalty imposed u/s 271(1)(c) does not survive, which is accordingly c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the issue was decided in favour of the assessee and the order of Ld. CIT(A) cancelling the penalty was confirmed by the Tribunal. 7. We have considered the rival submissions and have perused the order of the Tribunal for the earlier assessment year 2002-03 in assessee s own case. We find that in identical facts, the penalty imposed u/s 271(1)(c) of the Act on excess depreciation was cancelled by the Ld. CIT(A) in the case of the assessee in earlier assessment year 2002-03. Against this order, the revenue has preferred an appeal before ITAT and the Tribunal in I.T.A. No. 951/Ahd/2008 for the assessment year 2002-03 has confirmed the order of the Ld. CIT(A) cancelling the penalty imposed u/s 271(1)(c) of the Act. We, being in agreement w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction u/s 80-IA was cancelled in the assessee s own case in the earlier assessment year 2002-03 by the Tribunal. We, being in agreement with the decision of the Tribunal on this issue and the facts of this case being identical with the facts of the case of the assessee in the earlier assessment year 2002-03, cancel the penalty imposed for the relevant assessment year by following the order of the Tribunal for the earlier assessment year 2002-03 and accordingly, ground No.2 of the revenue s appeal is dismissed. 12. Ground No.3 of the revenue s appeal is as under: 3. The Ld. CIT(A) erred in law and on facts in deleting the penalty u/s.271(l)(c) levied on account of excess claim for deduction u/s.80IB amounting to ₹ 99,54,440 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. The CIT(A) has deleted the penalty by observing that similar addition made in the earlier assessment year 2003-04 was deleted by ITAT vide order dated 24.07.2009 and also that at the time of making the claim by the assessee, there were several decisions in favour of the assessee. Ld. CIT(A) has further observed that in any case, this issue was debatable and on such debatable issue, penalty u/s 271(1)(c) could not be levied. We find that this issue being debatable and there being decisions in favour of the assessee at the time of filing of return for the relevant assessment year, it could not be said that the conduct of the assessee in claiming the deduction was not bona fide. In this view of the matter, we hold that it is not a fit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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