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TMI Blog2016 (8) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... um proceedings the penalty order is dismissed as infructuous and the impugned order is set aside. - Decided in favour of assessee. - I. T. A. No. 2410/Delhi/2011 - - - Dated:- 19-5-2016 - Diva Singh (Judicial Member) And L. P. Sahu (Accountant Member) For the Appellant : S. Sabharwal, Senior Advocate, Rahul Sateeja and Gautam Swaroop, Advocates For the Respondent : A. K. Saroha, CIT-Departmental Representative ORDER Diva Singh (Judicial Member) 1. By way of the present appeal filed by the assessee the correctness of the order dated December 24, 2010, of the Commissioner of Income-tax (Appeals)-IX, New Delhi, pertaining to the 2000-01 assessment year has been assailed on the grounds that the penalty imposed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e merits that the deletion on facts was not justified the learned Commissioner of Income-tax-Departmental representative further contended thereon that the decision arrived at in the quantum proceedings was not accepted by the Revenue and when this fact is read along with the decision of the apex court in the case of CIT v. Reliance Petroproducts P. Ltd. [2010] 322 ITR 158 (SC), the assessee does not have any case. Referring to the facts of Reliance Petroproducts it was submitted that the assessee therein had duly filed an explanation giving reasons for making its claim and having filed the explanation the court held that the onus thereafter shifts to the Revenue. In the facts of the present case, the learned Commissioner of Income-tax-Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icament. Accordingly it was his submission that he may be allowed to argue in the penalty proceedings how the issue cannot be said to have been conclusively decided in favour of the assessee in the quantum proceedings. These arguments of the learned Commissioner of Income-tax-Departmental representative were again strongly opposed by the learned authorised representative who stated that it a mere waste of time of the court. The arguments it was submitted are not relevant in the present proceedings and have no merit for the purposes of deciding the present penalty proceedings. The admitted position as on date being that the issue in quantum stands decided in favour of the assessee thus the arguments are abusing the trust reposed in the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings amongst other grounds, the assessee had raised ground No. 5 before the Income-tax Appellate Tribunal which reads as under : 5. That, on the facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeals) erred in upholding the addition of ₹ 12,22,63,212 being expenditure incurred in respect of raising loan funds, by treating the same as deferred revenue expenditure. 6.2. A perusal of the said order shows that the co-ordinate Bench deleted the addition on the basis of which penalty has been imposed holding as under : 17. We have heard the rival parties and have gone through the material placed on record. We find that as per section 37, all expenditure incurred wholly and exclusivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT [1997] 225 ITR 802 (SC), the hon'ble court had held that the expenditure can be spread over a period of time provided the assessee decides to do so and, therefore, from the above judgment it can be concluded that right to claim deferred revenue expenditure is given to the assessee and not to the Revenue. In view of the above discussion and judicial precedents, we allow ground No. 5 of the assessee's appeal. (emphasis provided) 6.3. In the aforesaid peculiar facts and circumstances, we find that penalty order becomes infructuous. Reference may be made to the decision of the apex court in the case of K. C. Builders v. Asst. CIT [2004] 265 ITR 562 (SC) which has authoritatively laid down that where the additions made in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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