Income Tax Appellate Tribunal - Ahmedabad
Gujarat Gas Company Ltd.,, Ahmedabad vs Department Of Income Tax
आयकर अपीलीय अिधकरण,
अिधकरण, अहमदाबाद Ûयायपीठ 'सी
सी',
सी अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, "C" BENCH
सव[ौी ौी जी.
जी.सी.
सी.गुƯा,
ा माननीय उपाÚय¢,
उपाÚय¢, एवं ǒबजेÛि पॉल जैन, लेखा सदःय के सम¢ ।
BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND
B.P. JAIN, ACCOUNTANT MEMBER)
ITA Nos.92, 93 and 94/Ahd/2008
With
CO Nos.45, 46 and 47/Ahd/2008
[Asstt.Years: 1998-1999, 2000-2001 and 2001-2002]
ACIT, Cir.4 बनाम/Vs. Gujarat Gas Co. Ltd.
Ahmedabad. 2, Shantisadan Society
Nr.Parimal Garden
Ellisbridge, Ahmedabad.
(अपीलाथȸ / Appellant) (ू×यथȸ / Respondent)
राजःव कȧ ओर से/ : Shri Sanjeev Kashyap, Sr.DR
Revenue by
िनधा[ǐरती कȧ ओर से/ : Shri Sanjay R. Shah
Assessee by
सुनवाई कȧ तारȣख/ : 13th February, 2012
Date of Hearing
घोषणा कȧ तारȣख/ : 02-03-2012
Date of Pronouncement
आदे श / O R D E R
PER G.C. GUPTA, VICE-PRESIDENT: These are Revenue's appeals
and the assessee's CO for assessment years 1998-1999, 2000-2001 and
2001-2002 against the orders of the Commissioner of Income-Tax
(Appeals)-VIII, Ahmedabad. These are being disposed of with this
consolidated order.
ITA No.92/Ahd/2008 (A.Y 1998-1999)
2. The only issue raised in this regard in the appeal of the Revenue is
regarding validity of penalty under Section 271(1)(c) of the Income Tax
Act, 1961. The learned counsel for the assessee submitted that the
penalty in this case was levied on two issues viz. deferred payment credit
interest of Rs.46,79,262/- which was decided by the Tribunal in favour of
ITA Nos.92 to 94/Ahd/2008 With
CO Nos.45 to 47/Ahd/2008
the assessee and the addition made by the AO was deleted by the
Tribunal in assessee's quantum appeal in ITA No.833/Ahd/2005 dated 3-
4-2009. The learned DR could not controvert to the submissions of the
learned counsel of the assessee.
3. We have considered rival submissions. We find that since deferred
payment credit interest was deleted by the Tribunal in the assessee's
quantum of appeal for the relevant asstt.year 1998-99 vide order dated 3-
4-2009 (supra), the penalty imposed under Section 271(1)(c) of the Act
on this issue does not survive, we confirm the order of the CIT(A) in
cancelling the penalty and dismiss this issue raised in the ground of
appeal of the Revenue.
4. The second issue on which the penalty under Section 271(1)(c) was
imposed is regarding the disallowance under section 43B for the
employees' contribution to Provident Fund. The learned counsel for the
assessee submitted that the disallowance made by the AO has been
deleted by the Tribunal vide its order dated 3-4-2009 (supra). The
learned DR could not controvert to the submissions of the learned counsel
for the assessee.
5. We have considered rival submissions. We find that the
disallowance made under Section 43B for the employees' contribution to
PF was deleted by the Tribunal in the assessee's quantum appeal for the
asstt.year 1998-99 vide its order dated 3-4-2009 (supra) and therefore, the
penalty under Section 271(1)(c) does not survive and accordingly we
confirm the order of the CIT(A) in cancelling the penalty and this ground
of the appeal of the Revenue is dismissed.
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ITA Nos.92 to 94/Ahd/2008 With
CO Nos.45 to 47/Ahd/2008
6. In the result, the Revenue's appeal is dismissed.
ITA No.93/Ahd/2008 (A.Y.2000-2001)
7. The only issue raised in this appeal of the Revenue is regarding
imposition of penalty under Section 271(1)(c) of the Act. The learned
counsel for the assessee submitted that the penalty was imposed on three
counts. Firstly, the disallowance which was made under Section 35D of
the Act of Rs.92,123/-. He submitted that the amount was disclosed in
the statement of total income filed by the assessee and therefore no case
of penalty is made out. The learned DR has relied on the order of the
AO.
8. We have considered rival submissions. We find that the
disallowance was made under section 35D of the Act. The assessee has
disclosed all the material facts in its return of income filed with the
department. It is a case of honest difference of opinion regarding the
allowability of certain claim made by the assessee on which no penalty
under Section 271(1)(c) was imposable. Accordingly, we confirm the
order of the CIT(A) in cancelling the penalty and this issue raised in the
ground is dismissed.
9. The second issue on which the penalty is imposed is regarding the
addition on account of deferred payment credit interest of Rs.23.61 lakhs.
The learned counsel for the assessee submitted that the addition made by
the AO has been deleted by the Tribunal in the quantum appeal of the
assessee for the relevant asstt.year 2000-2001 in ITA No.3446/ahd/2004
vide order dated 30-1-2009. The learned DR could not controvert to the
submissions of the learned counsel of the assessee.
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ITA Nos.92 to 94/Ahd/2008 With
CO Nos.45 to 47/Ahd/2008
10. We have considered rival submissions. We find that the issue has
been decided in favour of the assessee in the quantum appeal of the
assessment for the relevant asstt.year 2000-2001 by the Tribunal vide its
order dated 30-1-2009 (supra). The facts of the case are identical with the
facts of the similar disallowance made in the earlier A.Y.1998-99. For
the reasons recorded in the foregoing paragraphs of this order, while
disposing of the Revenue's appeal for A.Y.1998-99 on this issue, we
confirm the action of the CIT(A) in cancelling the penalty, and
accordingly dismiss this issue of the Revenue raised in the ground of the
appeal.
11. The third issue on which the penalty was imposed is regarding
disallowance of Rs.8,42,500/- under Section 14A of the Act. The learned
counsel for the assessee submitted that the issue has been restored by the
Tribunal to the file of the AO in the quantum appeal of the assessee for
the Asstt.year 2001-2002 in ITA No.3446/ahd/2004 and 3464/Ahd/2004
dated 30-1-2009. The learned DR relied on the order of the AO.
12. We have considered rival submissions. We find that the issue of
disallowance under Section 14A of the Act was restored by the Tribunal
in assessee's quantum appeal for the assstt.year 2001-2002 vide order
dated 30-1-2009 (supra), and accordingly the penalty under Section
271(1)(c) does not survive and was rightly cancelled by the CIT(A).
However, the AO, if so required as per the law, initiate penalty
proceedings under Section 271(1)(c) of the Act at the time of re-
adjudication of the issue as per the directions of the Tribunal. We direct
accordingly.
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ITA Nos.92 to 94/Ahd/2008 With
CO Nos.45 to 47/Ahd/2008
13. In the result, the Revenue's appeal for A.Y.2000-2001 is
dismissed.
ITA No.94/Ahd/2008 (A.Y.2001-2002)
14. The only issue in this appeal of the Revenue is regarding validity
of imposition of penalty under Section 271(1)(c) of the Act. The learned
AR submitted that the penalty has been imposed on four counts. Firstly,
the disallowance made under section 35D of Rs.92,123/-. The learned
counsel for the assessee submitted that the assessee has disclosed all the
necessary particulars in its return of income filed, and therefore penalty
was rightly cancelled by the CIT(A). The learned DR could not
controvert to this submission of the learned counsel for the assessee.
15. We have considered the rival submissions. We find that the
assessee has disclosed all the material facts relating to the issue of
allowance under Section 35D of the Act in its return of income filed. It is
a case of honest difference of opinion regarding the allowability of
certain claim made by the assessee for which no penalty under Section
271(1)(c) of the Act was imposable. Accordingly, we hold that the
CIT(A) has rightly cancelled the penalty under Section 271(1)(c) on this
issue.
16. The second issue on which the penalty under Section 271(1)(c) was
imposed is regarding the deferred payment credit interest of Rs.1,65,352/-
. The learned counsel for the assessee submitted that in the quantum
appeal of the assessee for A.Y.2001-2002 the Tribunal in ITA No.36 and
134/Ahd/2005 dated 28-2-2011 has deleted the addition made by the AO.
-5-
ITA Nos.92 to 94/Ahd/2008 With
CO Nos.45 to 47/Ahd/2008
The learned DR could not controvert to the submissions of the learned
counsel for the assessee.
17. We have considered rival submissions. In view of the fact that the
addition made on account of deferred payment credit interest has been
deleted by the Tribunal in assessee's appeal for the relevant asstt.year
2001-2002, we hold that the CIT(A) has rightly cancelled the penalty
imposed on the assessee. Similar addition made in the earlier years by
the AO have been deleted by the Tribunal also in the quantum appeal of
the assessee. Accordingly, the order of the CIT(A) on this issue is
confirmed and the ground of the Revenue's appeal on this issue is
dismissed.
18. The third issue on which the penalty has been imposed under
Section 271(1)(c) of the Act is regarding the disallowance made under
Section 14A of the Act amounting to Rs.38.12 lakhs. The learned
counsel for the assessee submitted that the issue has been restored by the
Tribunal to the file of the CIT(A) vide its order in ITA No.36/Ahd/2005
and 134/Ahd/2005 dated 28-2-2011 and therefore the penalty cannot be
imposed on the assessee. The learned DR submitted that the issue has
been restored by the Tribunal in the quantum appeal of the assessee to the
file of the CIT(A) and not to the AO, and therefore the penalty could not
be cancelled on this issue.
19. We have considered the rival submissions. We find that the issue
of disallowance under section 14A of the Act has been restored to the file
of the CIT(A) by the Tribunal in the quantum appeal of the assessee for
the relevant Asstt.Year 2001-2002 vide order dated 28-2-2011 (supra). In
these facts, we hold that it shall be in the fitness of thing to restore the
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ITA Nos.92 to 94/Ahd/2008 With
CO Nos.45 to 47/Ahd/2008
issue of validity of penalty imposed on disallowance made under Section
14A of the Act of Rs.38.12 lakhs to the file of the CIT(A) to dispose of
the same on merit in accordance with law and in light of his decision in
the quantum appeal of the assessee, restored to his file by the Tribunal,
after allowing reasonable opportunity of being heard to both the sides.
We direct accordingly.
20. The fourth issue on which the penalty was imposed is of bad debts
written off of Rs.32,618/-. The learned counsel for the assessee
submitted that the issue has been restored to the file of the AO by the
Tribunal in the quantum appeal of the assessee for the relevant asstt.year
20001-002 vide order dated 28-2-2011 (supra) and therefore the penalty
could not be sustained. The learned DR could not controvert to the
submissions of the learned counsel for the assessee.
21. We have considered rival submissions. Since the issue has been
restored by the Tribunal in the quantum appeal of the assessee to the file
of the AO, we hold that the present penalty levied under Section
271(1)(c) of the Act cannot be sustained and the CIT(A)'s order on this
issue is confirmed. However, since the matter has been restored to the
file of the AO for re-adjudication in the quantum appeal of the assessee,
we hold that the AO, if so required as per law, may re-initiate the penalty
proceedings under Section 271(1)(c) of the Act while re-adjudicating the
issue. We direct accordingly.
22. In the result, the Revenue's appeal is partly allowed for statistical
purpose.
CO No.45, 46 and 47/Ahd/2008
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ITA Nos.92 to 94/Ahd/2008 With
CO Nos.45 to 47/Ahd/2008
23. The learned counsel for the assessee has submitted that all the
issues raised in the three COs. of the assessee are regarding the issue of
validity of satisfaction recorded by the AO while initiating penalty in
these cases. The learned counsel for the assessee has not pressed these
grounds of the COs., which are accordingly dismissed.
24. In the result, the Revenue's ITA No.92/Ahd/2008 for A.Y.1998-99
and the ITA No.93/Ahd/2008 for A.Y.2000-2001 are dismissed and ITA
No.94/Ahd/2008 for A.Y.2001-2002 is partly allowed for statistical
purpose. All three Cross Objections of the assessee for A.Y.1998-99,
2000-2001 and 2001-2002 are dismissed.
Order pronounced in Open Court on the date mentioned hereinabove.
Sd/- Sd/-
ǒबजेÛि पॉल जैन /B.P. JAIN)
(ǒबजे जी..सी
जी
(जी सी..गुƯाा/G.C. GUPTA)
लेखा सदःय /ACCOUNTANT MEMBER उपाÚय¢ /VICE-PRESIDENT
Copy of the order forwarded to:
1) : Appellant
2) : Respondent
3) : CIT(A)
4) : CIT concerned
5) : DR, ITAT.
BY ORDER
DR/AR, ITAT, AHMEDABAD -8-