THERMAX LIMITED,PUNE vs. ASSISTANT COMMISSIONER OF INCOME TAX, PUNE

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “A”, PUNE

BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER

आयकर अपील सं. / ITA Nos.678 & 679/PUN/2017 िनधा�रण वष� / Assessment Years : 2006-07 & 2008-09 Thermax Limited, Vs. ACIT, Circle-10, 14, Mumbai Pune Road, Pune Wakdewadi, Pune – 411 003 PAN : AAACT3910D Appellant Respondent

Assessee by Shri Sanjay Bhave Revenue by Shri S.B. Prasad Date of hearing 26-09-2019 Date of pronouncement 27-09-2019 आदेश / ORDER PER R.S.SYAL, VP : These two appeals by the assessee arise out of the orders passed by the Commissioner of Income-tax (Appeals) relating to the assessment years 2006-07 & 2008-09 confirming penalty u/s.271(1)(c) of the Income-tax Act, 1961 (hereinafter also called the Act’) in respect of disallowance of commission of Rs.45,18,200/- for the A.Y. 2006-07 and Rs.1,15,00,653/- for the A.Y. 2008-09.

2 ITA No.678 & 679/PUN/2017 Thermax Limited

material on record. The Tribunal in its orders passed in quantum

proceedings for the years under consideration on 13-09-2019 (ITA

Nos. 509 and 511/PUN/2017) has remitted the matter of

confirmation of disallowance of commission to the file of Assessing

Officer with a direction to decide it afresh in the light of certain

directions. Since the matter in quantum proceedings has been

restored to the file of the Assessing Officer, we are of the

considered opinion that it would be in the fitness of things if the

matter concerning the penalty on such amounts is also sent back to

be decided in conformity with the view taken by the Assessing

Officer in the proceedings pursuant to the directions given by the

Tribunal. We order accordingly. Needless to say, the assessee will

be allowed a reasonable opportunity of hearing in this regard. Our

view in restoring the penalty to the AO is fortified by the judgment

of the Hon’ble Supreme Court in the case of Mohd. Mohatram

Farooqui vs. CIT (SC) 2010-TIOL-23-SC-IT in which it has been

held that if addition is restored to the AO, then penalty should also

be restored. The Hon’ble Delhi High Court in Sanjay Gupta vs. CIT

(2014) 366 ITR 18 (Del) has also held that where the quantum has

been remanded to the AO, the question of penalty on account of the

3 ITA No.678 & 679/PUN/2017 Thermax Limited

said amount being treated as undisclosed income, should also be

remanded to the AO.

purposes.

Order pronounced in the Open Court on 27th September, 2019.

Sd/- Sd/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; �दनांक Dated : 27th September, 2019 सतीश आदेश क� क� क� �ितिलिप क� �ितिलिप �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order is forwarded to: अ�ेिषत आदेश आदेश आदेश अपीलाथ� / The Appellant; 1. 2. ��यथ� / The Respondent; 3. The CIT(A)-6, Pune 4. The Pr.CIT-V, Pune िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, पुणे 5. “ए” / DR ‘A’, ITAT, Pune; 6. गाड� फाईल / Guard file. आदेशानुसार आदेशानुसार/ BY ORDER, आदेशानुसार आदेशानुसार // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune

ITA No.678 & 679/PUN/2017 Thermax Limited

Date 1. Draft dictated on 26-09-2019 Sr.PS 2. Draft placed before author 27-09-2019 Sr.PS 3. Draft proposed & placed JM before the second member 4. Draft discussed/approved JM by Second Member. 5. Approved Draft comes to Sr.PS the Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order.

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