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2016 (11) TMI 322 - ITAT MUMBAIPenalty u/s 271(1)(c) - disallowance of professional fee - Held that:- Though the expenses were disallowed as business expenses, but the same have been allowed as expenses while computing taxable amount of capital gains / loss. It is further noted by us that entire claim was made by the assessee making full disclosure and no facts were concealed or hidden. Though, the disallowance was made by the Assessing Officer as in his opinion, these expenses were not allowable u/s 37, but ultimately these have been found to be allowable under the head “capital gains”. Under these circumstances, we find that the Ld. CIT(A) has rightly deleted the penalty. Disallowance of processing fee paid to various banks for acquiring term loans, etc. - Held that:- Disallowance has been deleted. When the basis of levy of penalty no more exists, the penalty also cannot survive anymore and, therefore, penalty on this issue is directed to be deleted. Disallowance of processing fee - Held that:- Disallowance was made by the Assessing Officer due to difference in opinion of the assessee and the Assessing Officer. In our view, the explanation given by the assessee is plausible explanation. Moreover, the expenses have not been found to be in-genuine or non-bonafide. Ld. CIT(A) has also examined the nature of the disallowance in detail and found that it was not a case of any concealment or furnishing of inaccurate particulars of income. After taking into account all facts and circumstances of this case, we find that the Ld. CIT(A) has rightly deleted the penalty. Excess carry forward of losses - Held that:- We find that disallowance made by the Assessing Officer has been deleted by the Tribunal. Therefore, there is no basis to continue with the penalty and, thus we find that the penalty on the same has rightly been deleted by Ld. CIT(A). Disallowance of claim being provision for diminution in value of investment written back for purpose of calculation of book profits u/s 115JB - Held that:- The assessee had conspicuously stated in the return itself while making this claim that this claim was dependent upon the outcome of the appeal of earlier year. Since relief was given in earlier year, this amount became disallowable in the year before us and, therefore, it was held to be rightly disallowed by the AO. But, in our view, it is not a case of concealment of income or furnishing of inaccurate particulars of income. The circumstances was such that if assessee would not have made this claim in the impugned year (though made on conditional basis) and if no relief would have been given in the appeal in earlier years, then, assessee would have lost the benefit in all the years. Thus we find that the assessee had made the claim in most transparent and befitting manner. Under these circumstances, it will be harsh and unjustified to fasten the assessee with the liability of penalty. Disallowance being the amount of provision for contingency - Held that:- As addition itself has been deleted and, therefore, there are no basis to continue with the penalty. Under these circumstances, we find that no interference is called for in the order of the Ld. CIT(A) wherein penalty has been deleted. Disallowance of expenditure incurred for issue of debentures / bonds - Held that:- As addition itself has been deleted and, therefore, there are no basis to continue with the penalty. Under these circumstances, we find that no interference is called for in the order of the Ld. CIT(A) wherein penalty has been deleted. Appeal decided against revenue
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