JCIT, NOIDA vs. M/S. NOIDA POWER COMPANY, GREATER NOIDA

This appeal by the Revenue is directed against the order passed by the CIT(A) on 31.10.2013, deleting the penalty of Rs.8 crore imposed by the Assessing Officer u/s 271(1)(c) of the Act, in relation to the Assessment Year 2008-09 .

Briefly stated, the facts of the case are that the assessee claimed deduction of Rs.22.93 crore under the head ‘Power purchase price.’ This deduction was claimed only through the computation of income without debiting it to the Profit & Loss Account. Such deduction was made on account of some additional power purchased by the assessee due to increase in demand. The rate applied in the invoice was disputed by the assessee by claiming that it was not a marginal cost as agreed upon, but, higher than the marginal cost. The differential amount of Rs.22.93 crore was claimed as deduction. The Assessing Officer made addition for this sum and also imposed penalty. The ld. CIT(A) deleted the penalty.

After considering the rival submissions and perusing the relevant material on record, it is observed that the penalty under identical circumstances was also imposed on the assessee for the immediately preceding assessment year i.e., 2007-08. The Tribunal, vide its order dated 05.09.2016 (ITA No.1569/Del/2013), has deleted the penalty. A copy of such order has been placed on record. The ld. DR could not point out any distinguishing feature for this year vis-à-vis the immediately preceding year which has been considered and decided by the Tribunal. Respectfully following the precedent, we uphold the impugned order in deleting the penalty.

In the result, the appeal filed by the Revenue is dismissed. The decision was pronounced in the open court on 28th March, 2017.