ITO, NEW DELHI vs. M/S. N.S.R. FARMS PVT. LTD., NEW DELHI

The only common ground raised in these two appeals is against cancellation of penalty levied u/s 271(1)(c) of the Income-tax Act, 1961 amounting to ` 17,28,498/- and 14,19,257/-.

It was pointed out by the learned counsel for the assessee that the issue is squarely covered in favour of the assessee by the decision of ITAT in assessee’s own case for assessment year 2009-10, wherein the penalty u/s 271(1)(c) of the Act was levied on identical facts. A copy of the order of the ITAT for assessment year 2009-10 in is placed on record.

We have heard both the sides and have perused the material placed before us as well as the decision of ITAT in assessee’s own case for assessment year 2009-10. We find that the penalty u/s 271(1)(c) of the Act was levied in respect of disallowance of expenditure. We find that under identical facts, the penalty was levied for assessment year 2009-10 which was deleted by the learned CIT(A) and ITAT sustained the order of learned CIT(A) with the following finding:-

“4. I find that against the returned income of Rs.68,270, the assessment under sec. 143(3) was framed at Rs.14,15,759. The assessee firm is engaged in the business of sale, purchase and development of real estate properties, investment and agricultural produce. During the assessment proceedings, the Assessing Officer noticed that the assessee was having income from sale of agricultural produce, interest received from the banks and others totaling to Rs.16,86,435. Against this income, the assessee claimed expenditure of Rs.14,79,260 under the head “administrative expenses, personnel, financial expenses and depreciation”. The Assessing Officer considered the above income as passive income and on the ground of earlier years assessments, he allowed only Rs.85,475 towards expenses on an estimate basis. The Assessing Officer has imposed penalty under sec. 271(1)(c) of the Act at Rs.4,16,372. The Learned CIT(Appeals) has deleted the same on the basis that there was claim of various expenses in the profit and loss account of which the Assessing Officer has allowed Rs.1 lac on estimate basis, hence, penalty cannot be levied. I find that the assessee had claimed certain expenses in the profit and loss account which were allowed by the Assessing Officer only to the extent of Rs.1 lac following identical disallowance made in the assessment year 2005-06, 2006- 07, 2007-08 and 2008-09 for the reason that the Assessing Officer was of the view that since the assessee has earned only passive income like interest and dividend during the year, not much expenditure would have been involved for earning of such income. Thus, it is very much clear that the disallowance was made on the basis of estimation and penalty has been levied without specific finding beyond doubt that there was concealment of particulars of income or furnishing inaccurate particulars thereof on the part of the assessee leading to the said disallowance. Being penal

Admittedly, the facts of the years under consideration are identical. In view of the above, respectfully following the above decision of ITAT in assessee’s own case, we uphold the order of learned CIT(A) for the years under appeal before us and dismiss the appeals filed by the Revenue.

In the result, the appeals of the Revenue are dismissed. Decision pronounced in the open Court on 15.12.2015.