TMI Blog2018 (8) TMI 1646X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty would reduce substantially whereas the assessee has already accepted penalty amount of ₹ 24, 14, 500/- by not challenging the order of the ld. CIT(A) in penalty appeal levied in the first round. Considering the stand of the assessee that it has accepted penalty imposed under section 271(1)(c) of the Act, we are of the view that there should not be any second penalty on the same addition. We allow this appeal of the assessee and delete penalty - ITA No.2484 and 2485/Ahd/2014 And ITA No.2518, 2519 And 2520/Ahd/2014 - - - Dated:- 28-8-2018 - SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER For The Assessee : Shri Vartik Chokshi, AR For The Revenue : Smt.Aparna M. Agrawal, CIT-DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER: These are two sets of appeal; first two appeals are directed at the instance of the assessee against orders of the ld. CIT(A)-III, Baroda dated 9. 6. 2014 and 16. 6. 2014 and other three appeals are by the Revenue against orders of the ld. CIT(A) dated 9. 6. 2014, 17. 6. 2014 and 11. 6. 2014 for the respective assessment years. All these appeals are disposed of by this common order for the sake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the view that the present appeals of the Revenue deserve to be dismissed. They are accordingly dismissed. However, it is observed that in case on re-verification at the end of the AO it comes to the notice that the tax effect is more or Revenue s case falls within the ambit of exceptions provided in the Circular, then the Department will be at liberty to approach the Tribunal for recall of this order. Such application should be filed within the time period prescribed in the Act. In view of the above, the appeals of the Revenue are dismissed due to low tax effect. 6. Now we take appeal of the assessee in the assessment year 2000-01 i. e. ITA No. 2484/Ahd/2014. This appeal is directed by the assessee against order of the ld. CIT(A) dated 9. 6. 2014 passed in the Asstt. Year 2000-01. 7. It emerges out from the record that earlier one round of litigation travelled upto the Tribunal and the Tribunal has decided the issue vide order dated 30. 9. 2011 in ITA No. 1385/Ahd/2006. In pursuance of the Tribunal s order fresh assessment order has been passed on 4. 1. 2013. Dissatisfied with the various additions made, the assessee went in appeal before the ld. CIT(A) who has partly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income 24. 11. 1999 7500000 Corp. Bank 5/97 Trf. From BOTA/C 1799 7500000 Borrowing 24. 11. 1999 1342500 Trf. from IDBI bank 1342500 129 77102 9871000 Total 84577 The above chart clearly shows that out of the total investments of Rs . 98, 71, 000/- rnade during the year under consideration, investment to the tune of Rs . 84, 82, 500/- (9, 82, 500 + 75, 00, 000) was brought out of the business income of the appellant as transfer from BOT Account . Further, the remaining investment of Rs . 13, 88, 500/-(46, 000 + 13, 42, 500) is made from the borrowings . Applying the rate of 16 . 25% on the amount utilized from the borrowed funds, irrespective of the fact that the appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 271(1)(c) of the Act. 15. Brief facts of the case are that the assessee has filed its return of income on 20. 11. 2000 declaring total income at ₹ 36, 70, 730/-. The assessment was reopened by issuance of notice under section 143(2) and ultimately an assessment order was framed under section 147 r. w. section 143(3) on 28. 3. 2005 whereby income of the assessee was determined at ₹ 1, 11, 33, 930/-. The ld. AO has made addition/disallowance on seven counts. He initiated penalty proceedings by issuance of notice under section 274 on 28. 3. 2005 with regard to two additions viz. interest expenses attributable to BOT projects claimed in regular business of ₹ 42, 77, 609/- and interest expenditure relating to tax free income amounting to ₹ 26, 83, 618/-. Qua these two additions penalty proceedings initiated and ultimately penalty of ₹ 24, 14, 500/- was imposed upon the assessee vide order dated 28. 3. 2007. This order of the AO has been upheld by the CIT(A) vide order dated 23. 2. 2009. According to the ld. counsel for the assessee no further appeal was filed. 16. In the quantum proceedings, the appeal was filed by the assessee and assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(l)(c) r . w . s 129 of the Act . Opportunity of being heard was offered . In response, the assessee furnished the submission on 22 . 07 . 2013 signed by authorized signatory which scanned pasted as under: **** **** 1 . 2 . From the above submission it can be gleaned that no contention has been put forward by the assesses in respect of the levy of penalty . It has been argued that the penalty was imposed earlier and the same cannot be imposed again . The contention has no force as the two predominant issues discussed above and few other issues of expenses like expenses on Staff Welfare, Conveyance, Telephone, Depreciation, Puja and Diwali etc were restored back to the file of assessing officer . Therefore, the present proceeding of penalty is relevant . From the above, it is crystal clear that the' asscsscc has concealed income by way of furnishing inaccurate particulars of income . In fact the assesses new that huge interest bearing Funds in the infrastructure division is not allowable even then, it claimed the same just lo avoid the tax liability and therefore, penalty u/s 27l(l)(c) is liable on a wrong claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the Addl . C . J . T, Range -4 Baroda as required by the provisions of section 274 (2)(b) of the Act under his approval dated 24 . 07 . 2013 conveyed under his No . BRD / AddLCIT / R . 4 / Penalty Approval/2013-14 . 18. It is pertinent to observe that in this year, the ld. AO considered two amounts for calculating penalty under sub-clause (iii) of section 271(1)(c). These amounts are disallowance of interest amounting to ₹ 42, 77, 609/- out of capitalization and disallowance of interest relating to earning of exempt income at ₹ 26, 83, 618/-. In earlier part of this order, we have considered quantum appeal of the assessee, wherein we have upheld interest expenses of ₹ 21, 94, 475/- out of ₹ 42, 77, 609/- and ₹ 84, 577/- out of ₹ 26, 83, 618. It will suggest that quantum on which it could be alleged that taxes evaded has been reduced substantially. If we go by the logic of the AO in the impugned order, then penalty would reduce substantially whereas the assessee has already accepted penalty amount of ₹ 24, 14, 500/- by not challenging the order of the ld. CIT(A) in penalty appeal levied in the first round. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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