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TMI Blog2015 (6) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... ring and contractors. It has four units at Byculla, Mulund, Nagpur and Chennai. In respect of the previous year relevant to the assessment year under consideration the assessee declared loss of Rs. 37,05,16,522/-. During the course of assessment proceedings the Assessing Officer noticed that the assessee claimed an amount of Rs. 1036.60 lakhs towards deduction u/s. 35DDA being 1/5th of VRS payments made in the current and earlier years. However, it was noticed that the VRS payment to the tune of Rs. 657.52 lakhs was already claimed. Hence the claim of Rs. 131.50 lakhs, being 1/5th of VRS payment made in A.Y. 2000-01, was disallowed and added back to the total income of the assessee. The Assessing Officer further noticed that the assessee re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer, at the penalty stage or by the first appellate authority; in fact additions made to the returned income were tax neutral. Under these circumstances, the assessee did not prefer an appeal against the quantum additions but penalty proceedings being independent the Assessing Officer ought to have considered the explanation of the assessee. Having regard to the circumstances of the case, the Tribunal, vide its order dated 18.11.2011, set aside the issue to the file of the Assessing Officer for denovo consideration. Pursuant to the direction of the Tribunal the Assessing Officer called for the explanation of the assessee but he was of the opinion that the explanation filed by the assessee is not acceptable and accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f revised return. The case synopsis is enclosed as Annexure VIII. In all the above cases although no Revise Return was filed, since no facts were hidden by the assessee it was held that there was no concealment. III. Prior Period Expenditure: The learned Judges of ITAT in their order of remand had very specifically directed at paragraph 6 that "we deem it fit and proper to matter to the file of Assessing Officer for fresh examination of the matter and for recording independent findings in the penalty proceedings and then decide the matter regarding imposition of penalty in a fair and objective manner, after giving due and reasonable opportunity of hearing to the assessee and by way of a speaking order." (emphasis supplied) On perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d committed an inadvertent and bona fide error and had not intended to or attempted to either conceal its income or furnish inaccurate particulars." IV Disallowance under section 43B: The copy paste job was continued in respect to levy of Penalty also under this section at paragraph 3 of the penalty order. The copy paste was not carried out at all and the order is incomplete and does not mention any ground for which the penalty is levied. Thus the penalty levied in respect of disallowance of 43B claim amounting to Rs. 6,56,944 should be dropped" 6. Having regard to the submissions of the assessee learned CIT(A) set aside the penalty levied by the Assessing Officer by observing as under :- "It is noted from the assessment order, and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd ground for levying penalty u/s 271(1)(c) which are Prior Period Adjustment, appellant has stated that it was declared in the company return filed before the Registrar of Companies also as prior period expenses pertaining to earlier years as same was not claimed in those years. In support of the same, appellant has filed a copy of printed Annual Report of 2003-04 also. I have gone through the same and noted that consolidated prior period figure for all the units i.e. Byculla, Mulund, Nagpur and Madras has been reflected. It is also noted that a copy of Auditor's report filed as an Annexure also states that expenses were incurred in previous year but accounted in the previous year relevant to A.Y. 2004-2005. The Assessing Officer has r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut by learned CIT(A), with regard to the VRS claim as soon as it had come to the notice of the assessee the same was accepted. In fact it was the assessee, who brought the same to the notice of the Assessing Officer. Similarly copy of printed annual report of 2003- 04 shows consolidated prior period figures for all the units and having regard to the circumstances of the case learned CIT(A) observed that it was not in the nature of furnishing inaccurate particulars, even though the claim was not allowable. Learned CIT(A) also observed that disallowance u/s. 43B is merely a technical disallowance and it cannot be inferred that it amounts to furnishing of inaccurate particulars or concealment of income. In our opinion the order passed by learn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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