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Income Tax Appellate Tribunal, DELHI BENCH “D”: NEW DELHI
Before: SHRI G.D. AGRAWAL, HON’BLE & SHRI AMIT SHUKLA
The aforesaid cross appeals have been filed by the assessee as well as by the revenue against the impugned order dated 12.10.2015, passed by the Ld. CIT(Appeals) Ghaziabad, in relation to the penalty proceedings u/s. 271(1)(c) for the assessment year 2008-09. At the outset, Ld. Counsel for the assessee submitted that as against the returned income of Rs. 35,61,470/-, assessment u/s 143(3) was completed at an income of Rs. 60,78,488/- after making various additions aggregating to Rs. 25,17,018/- AO had levied the penalty on account of following three additions :- i) Addition on account of unverifiable expenses – Rs. 1 lac; ii) Addition on account of LTGC on sale of Raj Nagar property - Rs. 13,35,769/-; and iii) Addition on account of long term capital gain on sale of land at Mussoorie - Rs. 10,63,000/-.
Ld. Counsel informed that, AO has levied the penalty of Rs. 19,52,446/- @200% of the tax on the total additions including the enhancement made by the Ld. CIT(A). Ld. CIT(A) has deleted the addition on most of the additions except for addition of Rs. 10,58,434/- on account of index cost of interest @ 100%; and the penalty on account of Rs. 10,63,000/- made u/s 50C which was not contested in appeal in quantum proceedings has been deleted by him. The Tribunal in the quantum appeal, vide order dated 20.11.2017 had deleted all the additions except for the amount of Rs. 10,63,000/- which was not contested by the assessee. Thus, in so far assessee’s appeal is concerned penalty has no legs to stand as the quantum has been deleted and revenue’s appeal is only on addition of Rs. 10,63,000/-
In the assessee’s appeal, we find that the assessee has challenged the levy of penalty on account of addition of Rs. 10,58,434/- which was made on account of disallowance of indexed cost of interest paid on the housing loan, whereas the revenue is in appeal against deletion of penalty made on account of addition made u/s 50C. In so far as the levy of penalty on account of claim of interest to Rs.10,58,434/-, it stands deleted by the Tribunal which reads as under :- “After considering the settled position of law about the allowance of interest on loan taken for the purchase of house property as part of cost more so when assessee has also not taken any other advantage of said interest and incurrence of interest expenditure is not under doubt, claim of interest of Rs. 10,58,434/- is fully allowable against the sale consideration and ground 5 and 6 allowed.”
Thus, when in the quantum proceedings the addition of Rs. 10,58,434/- has been deleted, then there is no question of levy of penalty on such an addition and accordingly, the penalty levied on account of Rs. 10,58,434/- is directed to be deleted and resultantly assessee’s appeal is treated a allowed.
In so far as deletion of penalty on account of Rs. 10,63,000/- made by invoking section 50C, as contested by the department in revenue’s appeal, at the outset we find that the penalty on amount of Rs.10,63,000/- admittedly is much below the tax effect as prescribed in Circular No.3/2018 dated 10.07.2018, whereby the monetary limit for filing of appeal by the department has been increased to sum of Rs. 20 lakhs. Since CBDT circular is applicable on the pending appeals also, therefore, the appeal of the department is dismissed as not maintainable. Thus, appeal of the revenue is dismissed.
In the result assessee’s appeal is allowed and revenue’s appeal is dismissed.