TMI Blog2012 (3) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... anding Counsel Respondent by : Shri R. Vijayaraghavan, Advocate O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : These are appeals filed by the Revenue for assessment years 2003-04 and 2004-05, against orders dated 4.8.2011 of Commissioner of Income Tax (Appeals)-VI, Chennai, deleting penalty levied under Section 271(1)(c) of Income-tax Act, 1961 (in short the Act ). 2. Facts for both years lie in the same compass. Assessee had taken windmills on lease from its associated companies engaged in manufacturing. The companies from which assessee had leased the windmills had acquired the windmills and leased it out to the assessee. As per the assessee, it was the first user of the windmills and though it was holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal vide its order dated 11th February, 2009, for assessment year 2004-05 set aside the order of ld. CIT(Appeals) and reinstated the order of A.O. denying the claim of deduction under Section 80-IA of the Act. The A.O. thereafter issued notice to the assessee to show cause why penalty should not be levied under Section 271(1)(c) of the Act. In response to such notice, it was submitted by the assessee that there was no concealment nor furnishing of any inaccurate or false particulars. As per the assessee, the claim for deduction under Section 80-IA of the Act was supported by Tax Audit Report in Form 3CD and audit report in Form 10CCB as prescribed under Section 80-IA of the Act. Assessee pointed out that ld. CIT(Appeals) in quantum proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was genuine. The claim was to be disallowed only for a reason that leasing of the windmills from the lessee companies was itself considered to be first use of windmills, whereas, in fact, the windmills were first used by the assessee as lessee and electricity generated was supplied to sister concerns. Assessee also argued that there was no transfer of property coming within the ambit of Section 53A of Transfer of Property Act by the lease. Ld. CIT(Appeals) was appreciative of these contentions. According to him, decision of Hon'ble Apex Court in the case of CIT v. Reliance Petroproducts Pvt. Ltd. (322 ITR 158) and that of Delhi High Court in the case of CIT v. Nath Brothers (288 ITR 670) went in favour of assessee. He, therefore, deleted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. (supra). 7. Facts stated above would leadto automatic resolution of the dispute, in our view. Assessee had made claim under Section 80-IA of the Act on electricity generated and distributed. But, the Assessing Officer denied it. The reasons given by the Assessing Officer were that the windmills were taken not on lease but on transfer and there was earlier use of such windmills. However, these reasonings were not found acceptable by the ld. CIT(Appeals). No doubt, the Tribunal had reversed the order of ld. CIT(Appeals) and reinstated the orders of A.O. in quantum assessments. Appeals against such orders of the Tribunal have been admitted by the Hon'ble High Court. This by itself, in our opinion, shows that the claim of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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