TMI Blog2013 (9) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Commissioner of Income Tax(A)-XIX, New Delhi dated 17.9.2010 in Appeal No. 36/2008-09 for AY 1981-82 by which the Commissioner of Income Tax(A) confirmed and upheld the penalty order dated 28.8.2008 passed u/s 271(1)(c) of the Income Tax Act, 1961 (for short the Act). 2. Although the assesse has taken as many as nine grounds in this appeal but the sole issue is contained in ground no. 1, other grounds are narrative and supportive to the same which are reproduced as under:- "1. That the authority below has grossly erred in sustaining penalty of Rs.8,45,490/- imposed by the Learned Assessing Authority under Section 271(l)(c) of the Income Tax Act. 2. That the provisions of Section 271(1)(c) have erroneously been invoked second time. The satisfaction for imposition of penalty was recorded for two items of addition made in the Assessment Order namely the addition of Rs.90,000/- as unexplained cash credit and Rs.97,262/- representing alleged unvouched commission. 3. That the Assessing Authority has already exercised his powers under Section 271 (1)(c) of the LT. Act by levying a penalty of Rs. 1,30,850/- by order dated 30.10.1992. 4. That in first appeal before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Cinema Hall (Robin Talkies) which was purchased but the assessee only inherited the rights to run the Cinema in the said Cinema hall from March, 1980. This right was purchased as a total consideration of Rs. 8,78,500/-. The A.O. did not allow deduction on account of depreciation the Cinema building since the same was not owned by the appellant. 4.1 The Ld. AR of the appellant, on the other hand, submitted that assessing officer had wrongly held that the appellant had purchased the Cinema building during the year whereas building valued at Rs. 10810.85 on which depreciation of Rs. 1020.25 has been charged @ 2.5% on was brought forward from the previous year. 4.2 I have considered the facts of the case carefully. The appellant vide memorandum dated 19/3/1980 got the right to screen films booked by it and chosen by it on weekly Theater basis for a period of 520 weeks. The lease was renewable at the option of the second party, the appellant. Therefore, the appellant got the Cinema Building on lease to screen the films for a period of 10 years. Since there was no ownership on Cinema Building, the appellant is not entitled for depreciation. Accordingly, this ground of appeal is dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious year balance being Rs. 35,30,955.25. Therefore, the building which fetched rent was a different building than the building under construction. The appellant has also not given any evidence to prove that the building on which intt. was capitalized was the same building which was let out to Punjab Sind Bank and other persons. In the absence of the evidence, the claim of the appellant cannot be entertained and therefore, this ground of appeal stands dismissed. 6. Ground No. 1 relates to addition of Rs. 5,16,111/- on account of intt. for earlier earlier years. The assessing officer has disallowed the intt. on the ground that the intt. pertains to earlier years. The Ld. AR of the appellant, on the other hand, submitted that the appellant has not claimed the amount of intt. paid in previous year and therefore, it is allowable in the year under consideration. 6.1 I have considered the facts of the case carefully. The intt. of Rs. 5,16,111/- relates to earlier years. The assessee has not brought any material to support its contention that the liability to pay interest crystallized during the year under consideration and therefore, the same is not allowable. Moreover, the interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , once the penalty order dated 30.10.1992 was partly cancelled by the order of the Commissioner of Income Tax(A) dated 7.4.1993 and on further second appeal to ITAT, the remaining part of the penalty pertaining to the addition made u/s 68 of the Act was also fully cancelled by the order dated 29.10.1999 in ITA No. 4967/Del/1993 by ITAT Delhi 'A' Bench, then it is not left open for the revenue/Assessing Officer to agitate the issue of penalty and to again impose penalty u/s 271(1)(c) of the Act for the same assessment order. 10. Replying to the above legal contention, ld. DR submitted that on the earlier occasion, the Assessing Officer levied penalty on the issue of addition made on unexplained credit amount and disallowance/additions on unvouched commission which was finally cancelled by the ITAT. But the penalty impugned in this appeal imposed by the AO by order dated 28.8.2008 and also confirmed and upheld by the Commissioner of Income Tax(A) is related to the issue of disallowance of interest wrongly claimed on funds raised for building under construction, being capital in nature and another disallowance made in relation to the interest claimed as expenses of the year under co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order is called in question before the superior forum or appellate authority. As we have already observed that the impugned order suffers from lack of reasoning and is not a speaking order on any issue for which additions were made and penalty was levied by the Assessing Officer. In view of foregoing discussions, specially when we have noticed that the ld. Commissioner of Income Tax(A) has not passed a speaking order on various issues raised in the appeal before him, we consider it fair and appropriate to set aside the order of Commissioner of Income Tax(A) and restore the matter to his file for deciding the appeal afresh in accordance with law after allowing sufficient opportunity to both the parties. Needless to say that while re-deciding the appeal, the Commissioner of Income Tax(A) shall pass a speaking order keeping in mind and addressing the legal contentions of the assessee and reply of the revenue to the same as mentioned hereinabove as per mandate of provisions of section 250(6) of the Act. 13. In view of above, the entire issue, inter alia legal objection of the assessee and reply of the revenue as mentioned in para 09 and 10 hereinabove, is restored to the file of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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