TMI Blog2017 (2) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Rajendra, A.M. and Sanjay Garg,J.M. For The Revenue : Shri Rajesh Kumar Yadav For The Assessee : Shri J.D. Mistri Order u/s.254(1)of the Income- tax Act,1961(Act) -Per Rajendra,AM: Challenging the order dated 16/08/2011 of CIT (A)-16,Mumbai the assessee has filed the present appeal.Assessee-company is engaged in the business of information technology enabled services called call centre service.Return of income was filed on 27/10/2004, declaring Loss of ₹ 3.41 corrodes.A revised return was filed on 22/06/205,declaring Loss at ₹ 4.12 crores.The Assessing Officer(AO)completed the assessment u/s. 143 (3) on 22/12/2006 determining the income of the assessee at Rs.(-) 1.36 crores. While computing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05/2016) and stated that identical issue had been deliberated upon by the Tribunal in that matter. He also relied upon the cases of Nayan Builders and Developers (Income Tax Appeal Number 415 of 2012) of the Hon ble Bombay High Court and Liquid Investment and Trading Company (ITA 240 of 2009,dtd.05/10/2010 of the Hon ble Delhi High Court.The Departmental Representative (DR) contended that Tribunal had upheld the order in the quantum proceedings, that the AO was justified in levying penalty. 4. We have heard the rival submissions and perused the material before us. We find that while deciding the quantum appeal the Tribunal had dismissed the Ground raised by the assessee with regard to project development expenses, that the Hon ble Juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the order of AO assessee filed appeal before CIT(A), wherein it was contended that Hon ble High Court has admitted the substantial question of law in respect of order passed by Tribunal pertaining to the ground related with the depreciation of boiler and also made submission on the merit of the case. The ld. CIT(A) after considering the contention of assessee hold as under: I hold that the appellant had not made conscious efforts to conceal the particulars of its income and as such no malafide is involved on the part of the appellant in claiming full normal depreciation on the boiler. Hence, in given circumstances though the disallowance on the part of deprecation claimed by appellant is justified, but the penal action for conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone through the record of the case and the law cited by ld. representative of the parties. The law cited by ld. DR in ACIT vs. Khanna Annandhanam is not applicable as the fact of this case is in difference from the case in hand. In Khanna Annandhanam the receipt of compensation was a revenue receipt and the assessee instead of crediting the amount in its P L A/c credited the amount directly in the account of partners, therefore, the assessee tried to evade taxes by treating patent revenue receipt as capital receipt by crediting to partners account. 6. The Hon ble Bombay High Court while considering the almost identical ratio(grounds) held as under: Having heard Mr Ahuja, learned counsel appearing on behalf of the Appellant, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case. 7. Now coming to the facts of the present case. It is not in dispute in the plea of assessee that a substantial question of law has been admitted by Hon ble jurisdictional High Court on quantum appeal. In view of the judgments of Hon ble jurisdictional High Court and Delhi High Court no penalty can be levied on the debatable and arguable issue. Admittedly, substantial question of law had been admitted by the Hon ble High Court on the assessee s appeal. 8. In view of the above legal discussion, the penalty order u/s 271(1)(c) of the Act was not justified when debatable and arguable issue on substantial question of law has been admitted by the Hon ble High Court. Thus, the appeal of Revenue is dismissed. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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