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2019 (6) TMI 918 - AT - Income TaxRectification u/s 254 - levy of penalty u/s 271(1)(c) - HELD THAT:- We find that Tribunal [2016 (11) TMI 1623 - ITAT MUMBAI] only set aside the findings of CIT(A) on the issue of disallowance of commission expenses and directed AO to decide the matter afresh. Brief facts as emanates from record are that the assessee has suffered quantum addition on account of commission for ₹ 147.45 Lacs which was contested by assessee before the Tribunal wherein the matter was restored back to the file of Ld. AO for fresh consideration. However, the penalty levied by AO u/s 271(1)(c) was deleted by CIT(A) which was contested by the revenue in M/S ALLWILER INDIA PVT. LTD. [2018 (12) TMI 1658 - ITAT MUMBAI] wherein the same was also restored back keeping in view the fact that quantum additions were also restored back by the Tribunal. We do not find any infirmity in the same and the decision was quite logical one because the penalty appeal was filed by the revenue and not by the assessee since the penalty was already deleted by Ld.CIT(A). Therefore, the said order, in our opinion, would require no interference on our part. As the quantum order has been passed by Ld. AO u/s 143(3) r.w.s. 254 on 31/12/2017 wherein same addition has been repeated and fresh penalty proceedings has been initiated. The same is also in order since the earlier penalty order would not survive and the only penalty which survive against the assessee would be pursuant to this order only. The miscellaneous application for AY 2008-09 stand dismissed. AY 2010-11 - the revenue agitated that relief granted by fits appellate authority qua commission expenditure. The same was also restored back to the file of Ld. AO for re-adjudication. The plea of Ld. AR is that rendering of service has not been doubted by Ld. AO and secondly, similar issue agitated by revenue for AYs 2012-13 & 2013-14 has been dismissed in M/S TUSHACO PUMPS PVT. LTD. [2019 (2) TMI 1648 - ITAT MUMBAI] No prejudice has been caused to the assessee by way of restoration of issue to the file of Ld. AO and the assessee is free to substantiate his stand, in any manner. Secondly, the cited order of the Tribunal is subsequent to the order under question - no mistake apparent from record, the application stands dismissed. .
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