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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
O R D E R PER MAHAVIR SINGH, JM:
These two appeals by the Revenue are arising out of the same order of CIT(A)-38, Mumbai, in appeal No. CIT(A)-38/IT-448 & 449/2013-14 dated 25-07-2014. The Assessments were framed by DCIT Centre Circle 47, Mumbai for the A.Yrs. 2003-04 & 2004-05 vide order dated 29-12-2010 u/s 153A read with section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’). The Penalties were levied by the AO under section 271(1)(c) of the Act for the A. Yrs 2003-04 & 2004-05vide his order dated 21.03.2013.
The only common issue in these appeals of Revenue is against the order of CIT(A) deleting the levy of penalty under section 271(1)(c) of the Act for the AY 2003-04 and AY 2004-05. At the outset, the learned Counsel for the assessee stated that the penalty is levied on disallowance of loss incurred on derivative transactions by treating the same as speculative loss in term of section 43(5) of the Act and Tribunal in quantum appeal in & 7133/Mum/2011 for & 6401/Mum/2014 Bharat R. Ruia (HUF); A.Y:03-04 & 04-05 the A.Yrs 2003-04 & 2004-05 vide order dated 18-11-2016 has already set aside the assessment in both the years. We have gone through the Tribunals order of quantum appeal and notice that the Tribunal for the AY 2003-04 as well as for AY 2004-05 allowed the appeal by observing under: -
“………Thus the assessment so framed by the AO, not being found to be in conformity with the aforementioned judgement of the Hon'ble High Court of jurisdiction, is not sustainable in the eyes of law, and the same is therefore set aside. The ‘Ground of appeal No. 1’ so raised by the assessee before us is allowed.
That the appeal of assessee for the AY 2003-04, marked as ITA No. 7132./Mum/2011 is thus allowed in light of our aforesaid observations….”
And similarly, the appeal for assessment year 2004-05 was allowed vides Para 12 as under: - “12 That now adverting to the 'Ground of appeal No.1', the Ld. A.R. had brought to our notice that identical issues arising from a similar set of facts was involved in the appeal of the assessee for AY. 2003-04. marked as ITA.7132/Mum/2011, which factual posit ion had been admitted by the Ld. D.R. Thus in light of the aforesaid facts, we adjudicate the present issue in terms of our order passed in white disposing of the 'Ground of appeal No. 1' in the appeal for the A.Y. 2003-04, marked as and thus in terms of our reasoning and observations recorded while disposing of the aforesaid ground of appeal in ITA No.7132/Mum/2014 of the assessee, allow the said 'Ground of Appeal No.1” & 6401/Mum/2014 Bharat R. Ruia (HUF); A.Y:03-04 & 04-05
3. Since the assessment was quashed, penalty levied under section 271(1)(c) of the Act will not survive. Hence, we confirm the order of CIT(A) deleting the penalties for both A.Yrs.
In the result, both the appeals of Revenue are dismissed. Order pronounced in the open court on 07-03-2017.