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Income Tax Appellate Tribunal, “C” BENCH, MUMBAI
Before: SHRI RAJENDRA, AM & SHRI RAVISH SOOD, JM
आदेश / O R D E R
PER RAVISH SOOD, JUDICIAL MEMBER:
The present appeal filed by the revenue is directed against the order passed the CIT(A)-8, Mumbai, dated 18.01.2016, which in itself arises from the order passed by the A.O under Sec. 271(1)(c) of the Income tax Act, 1961 P a g e | ACIT 1(2)(2) Vs. M/s Maharashtra Tourism Development Corporation (for short „Act‟), dated 30.03.2014 for A.Y 2009-10. The revenue had assailed before us the order of the CIT(A) on the following ground of appeal: “1. Whether on facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the penalty amounting to Rs.11,13,40,937/- imposed u/s 271(1)(c) of the Act.”
2. Briefly stated, the facts of the case are that the assessee which is a State public sector company established by the Government of Maharashtra to promote tourism in the State of Maharashtra had filed its return of income for A.Y 2009-10 on 05.10.2009, declaring total income of Rs.4,15,39,104/-. The return of income was processed as such under Sec.143(1) of the Act. The case of the assessee was thereafter taken up for scrutiny assessment under Sec.143(2). The A.O interalia made an addition of interest income of Rs. 37,11,36,457/- received by the assessee on unutilized government grant and assessed the income at Rs.41,66,70,663/-. The CIT(A) on appeal upheld the addition made by the A.O.
3. The A.O initiated penalty proceedings and vide his order dated 30.10.2011 levied penalty of Rs.11,13,40,937/- under Sec. 271(1)(c) of the Act in respect of aforesaid addition of Rs. 37,11,36,457/-.
4. Aggrieved, the assessee assailed the penalty imposed by the A.O in appeal before the CIT(A). The CIT(A) vide his order dated 02.05.2014, being of the view that the assessee which was a State government Public Sector undertaking (for short „PSU‟) had received the grant-in-aid from Government of India, being bound to follow the instructions issued by the latter, thus guided by the Office memorandum dated 06.12.2006 of the Government of India had treated the interest accrued on unutilized grant-in-aid as part of the grant itself. The CIT(A) holding a conviction that as the complete details of the interest earned as well as the explanation as to why said amount was not offered for tax was made available by the assessee, therefore, there was no reason for bringing the said act of the assessee within the purview of concealment of income or furnishing of inaccurate particulars of income under Sec. 271(1)(c) of the Act. The CIT(A) on the basis of his aforesaid P a g e | ACIT 1(2)(2) Vs. M/s Maharashtra Tourism Development Corporation deliberations deleted the penalty of Rs.11,13,40,937/- and allowed the appeal of the assessee.
5. The revenue being aggrieved with the order of the CIT(A) had carried the matter in appeal before us. At the very outset of the hearing of the appeal, it was submitted by the ld. Authorized Representative (for short „A.R‟) that the quantum appeal of the assessee had been set aside to the file of the A.O for fresh adjudication by a coordinate bench of the Tribunal, viz. ITAT, Mumbai bench “B”, Mumbai in Maharashtra Tourism Development Corporation Ltd. Vs. DCIT, Range-3(2), Mumbai (ITA No. 17/Mum/2013), dated 09.03.2017 (copy placed on record). Per contra, the ld. Departmental Representative (for short „D.R‟) did not controvert the aforesaid factual position.
We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. We find that a coordinate bench of the Tribunal, viz. ITAT Mumbai bench “B”, Mumbai by a common order had restored the quantum appeal of the assessee for the year under consideration, viz. A.Y 2009-10 in Maharashtra Tourism Development Corporation Ltd. Vs. DCIT, Range-3(2), Mumbai (ITA No. 17/Mum/2013 and A.Y 2009-10), dated 09.03.2017 to the file of the A.O for fresh adjudication after giving sufficient opportunity of being heard to the assessee, observing as under: “7. No distinction has been made on law or on facts. It is reiterated by the Ld. Counsel that audit report is now available. Therefore, we find it appropriate to send all the issues raised before us back to the file of the AO to be decided afresh after giving adequate opportunity of hearing to the assessee. The assessee shall be free to raise all the factual and legal issues with respect to these grounds and shall extend requisite co-operation to the AO by submitting details and documentary evidences as may be called for by the AO from time to time, as per law. With these directions, all the issues raised in aforesaid three appeals are sent back to the file of the AO and these grounds may be treated as allowed for statistical purposes.” We are of the considered view that now when the assessment order which formed the very basis on which the penalty under Sec. 271(1)(c) had been imposed upon the assessee, in itself had been restored to the file of the A.O