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TMI Blog2015 (7) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee Addition on account of under statement (unbilled) of Revenue - CIT(A) deleted the levy - Held that:- - CIT(A) deleted the levy - Held that:- pears that the First Appellate authority has been simply carried away by the submissions made by the assessee that the issue is covered by the earlier order of the Tribunal. It is clear that the Ld. CIT(A) has decided the issue in favour of the assessee without understanding the facts of the case and without comparing it with the facts of the earlier assessment year. This make the order of the Ld. CIT(A) erroneous. In the interest of justice and fair play, we restore this issue to the file of the Ld. CIT(A) to be decided afresh - Decided in favour of assessee for statistical purpose. - I.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No. 2276/M/2011 and 2405/M/2011 deleted the addition made u/s. 40(a)(ia) of the Act therefore to this extent, we do not find any error in the findings of the Ld. CIT(A). The Ld. CIT(A) has correctly held that no penalty can be levied as the quantum additions have been deleted by the Tribunal. 4.1. Proceeding further, during the course of the assessment proceedings, the AO found that the assessee has claimed ₹ 1,15,07,000/- as Revenue expenditure on account of meter equipment. The assessee was asked to explain as to why the excess claim of expenditure as pointed out by the CAG in his report should not be disallowed. The assessee explained that necessary rectification entries have been passed in the subsequent years therefore no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ia) is concerned, the Ld. Departmental Representative fairly conceded that the quantum additions have been deleted by the Tribunal, therefore there is no basis for the levy of penalty. In so far as the levy of penalty on overstatement of expenditure is concerned, the DR strongly supported the assessment order. It is the say of the Ld. DR that by claiming capital expenditure as revenue expenditure, the assessee has clearly filed inaccurate particulars of its income, therefore, the AO has rightly levied the penalty u/s. 271(1)(c) of the Act. 8. Per contra, the Ld. Counsel for the assessee strongly contended that the penalty cannot be levied because the assessee has not filed any inaccurate particulars. All the material facts were disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the matter is that the assessee did contested this disallowance before the Tribunal. This conduct of the assessee clearly distinguishes the facts of the present case with all the cases relied upon by the assessee. 10.1. Moreover in the case of Price Waterhouse Coopers Pvt. Ltd(supra), once the mistake was pointed out to the assessee, the assessee immediately filed a revised return and the matter ended then and there only. On these peculiar facts, the Hon ble Supreme Court deleted the levy of penalty. The Ld. CIT(A) has erroneously relied upon this decision of the Hon ble Supreme Court on the facts narrated hereinabove. 10.2. In our considered opinion, the conduct of the assessee speaks for itself. We, therefore, set aside the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be said that the issue is not covered by the earlier order of the Tribunal. 17. We have carefully perused the orders of the authorities below. We have also considered thoughtfully the decision of the Tribunal for earlier assessment years placed before us by the Ld. Counsel. 17.1. Let us first understand the facts relating to the addition of ₹ 7,95,16,000/-. This find place at para 5.1 on page-2 of the assessment order which reads as under: Addition on account of unbilled revenue The CAG in its comments on Revenue from sale of power has stated as under: The above is understated due to a) Non-accountal of supplementary bills on introduction of new tariff categopry HT-II commercial at Rastapeth- ₹ 644. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r assessment year. This make the order of the Ld. CIT(A) erroneous. 18. In the interest of justice and fair play, we restore this issue to the file of the Ld. CIT(A) to be decided afresh on the peculiar facts for the year under consideration and not to be carried away by the decision of the Tribunal in earlier assessment years. The Ld. CIT(A) is directed to decide this issue afresh after giving a reasonable and sufficient opportunity of being heard to the assessee. 19. In the result, the appeal filed by the assessee for ITA No. 330/M/13 for A.Y. 2007-08is partly allowed and ITA No. 331/M/13 for A.Y. 2009- 10 is treated as allowed for statistical purpose. Order pronounced in the open court on 18th March, 2015 - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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