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2020 (2) TMI 367 - HC - Income TaxPenalty u/s 271(1)(c) - CIT (Appeals) found some fault in the exercise of jurisdiction by AO and remanded the matter back - AO disallowed the mining land restoration charges in an amount of ₹ 1,40,00,000/- and added back this amount to the return income - HELD THAT:- Commissioner (Appeals) basically directed the AO to revisit the issue of disallowance but did not specifically interfere with or set aside the endorsement relating to the issuance of notice under Section 271 (1) (c) of the IT Act. From the tenor of the Order dated 16.11.2000, it is clear that the Commissioner (Appeals) did not wish to interfere with the endorsement at the stage of disposal of the appeal as the endorsement would undoubtedly lose its efficacy, in case, upon remand, the AO were to revoke the disallowance to the extent of ₹ 1,40,00,000/- thereby reducing the returned income to that which was originally declared by the appellant at the time of filing of the initial returns for the Assessment Year 1997-1998. The Order dated 16.11.2000, upon contextual reading and understanding also suggests that in case, upon remand, the AO were to maintain his original position of disallowing the amount of ₹ 1,40,00,000/-, thereby maintaining the return income at ₹ 54,49,180/-, then, obviously, there could be no jurisdictional bar to the continuance of the penalty proceedings, initiated by the endorsement which is to be found in the AO's Order dated 8.2.2000. If the Order dated 16.11.2000 is read and interpreted in this fashion, then, it is difficult to agree with Mr. Kulkarni's submissions or to take a view at variance with that taken by ITAT in the impugned Order dated 28.8.2013. In this case the AO not only maintained the earlier income as determined in his Order dated 8.2.2000 but even the appeal instituted by the appellant against the same was withdrawn by the appellant. In such circumstances, we are unable to agree with the contentions of Mr. Kulkarni that at the stage of making order giving effect to the Order of the Commissioner (Appeals), there was necessity of making a fresh Order or there was a necessity of issuing a fresh notice for initiating the penalty proceedings. Such a contention appears to emphasise entirely on form than on substance, even, though it is the case of the appellant that it is the substance which must prevail over the form, when it comes to the interpretation of the Order dated 16.11.2000. We answer the substantial questions of law against the appellant in favour of the Revenue. The appeal is therefore dismissed and the parties are directed to appear before the Commissioner (Appeals) on 9th March, 2020 at 11.00 a.m., in order to enable the Commissioner (Appeals) to decide on merits whether penalty of ₹ 40,00,000/- was correctly levied upon the appellant.
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