TMI Blog2018 (1) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... to examine the matter of afresh. Where the very basis for levy of penalty has been set-aside to the file of the AO, it is not necessary for us to go into the merits of the case and the penalty order passed u/s 271(1)(c) deserves to be set-aside. In the result, the ground taken by the Revenue is dismissed. - ITA. No. 334/JP/2017 - - - Dated:- 18-1-2018 - SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SINGH YADAV, AM For The Revenue by : Shri Varindar Mehta (CIT) For The Assessee by : Shri Parsi Pardiwala Shri M. L. Patodi (Adv.) Mrs. Ritu G.P.Das (CA) ORDER PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the Revenue against the order of Ld. CIT(A), Kota dated 28.02.2017 for Assessment Year 2008-09 wherein the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additions, so sustained by the ld. CIT(A), and the basis for levy of penalty by the AO, was set aside to the file of the Assessing Officer to examine the matter of afresh. 6. The ld. CIT(A) referred to the judgment of Hon ble Supreme Court in the case of K.C. Builders vs. Assistant Commissioner of Income-tax 135 Taxman 461 (SC) wherein it was held that where the assessment order or reassessment order on basis of which penalty has been levied on the assessee itself been finally set aside or canceled by the Tribunal, penalty cannot stand by itself and the same is liable to be cancelled. The ld. CIT(A) has also referred to the decision of Hon ble Rajasthan High Court in case of CIT vs. Roy Durlabhji 211 ITR 470 wherein it was held that wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding expenses of ₹ 2,77,69,013/-, the assessee has claimed that steam worth ₹ 18,51,26,755/- was generated through HRSG by recovering energy from exhaust of turbine of Captive Power Plant, however, no expenditure of HRSG was attributed to the same. In the opinion of ld. CIT(A), for recovery of energy in HRSG, the assessee must have incurred certain expenditure to recover such huge amount of energy and he therefore estimated 15% of the above amount can be attributed to recovery of energy worth ₹ 18,51,26,755/- which comes to ₹ 2,77,69,013/-. In our view, what is relevant to determine is the treatment of steam worth ₹ 18,51,26,755/- and how the same has been accounted for while computing the deduction under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s furnished. The onus to establish that the investments are made out of surplus funds and not borrowed funds is on the assessee and the same has not been discharged in the instant case. We accordingly setaside the matter to the file of the AO to examine the matter afresh. Accordingly, this ground of appeal of assessee is allowed for statistical purposes. 10. On perusal of the above findings of the Coordinate Bench, it is clear that the matter in relation to both the additions namely claim u/s 80IA in respect of power plant amounting to ₹ 3,62,55,540/- and disallowance of interest in relation to investment made with the subsidiary companies amounting to ₹ 28,12,000/- which is the subject matter of penalty order and form th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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