INCOME TAX OFFICER Vs. SURYADARSHAN CHS LTD.

JUDGEMENT

(1.) THIS is an Appeal by the Revenue and Cross Objection ('CO' for short) by the Assessee arising out of the Order by the Commissioner of Income Tax (Appeals) -25, Mumbai ('CIT(A)' for short) dated 23.02.2012, partly allowing the assessee's appeal contesting the levy of penalty u/s.271(1)(c) of the Income Tax Act, 1961 ('the Act' hereinafter) in respect of its assessment for the assessment year (A.Y.) 2000 -01 vide order dated 28.03.2007.

(2.) THE penalty in the instant case stands levied in respect of an income of Rs.14,86,753/ - comprised in the total income determined in assessment u/s.144 r.w.s 147 of the Act at Rs.15,11,010/ - vide order dated 31.12.2003. The same pertains to two items of income, i.e., for Rs.14,70,000/ - and Rs.16,753/ -. The penalty u/s.271(1)(c) having been confirmed for the latter amount, the assessee appeals per its CO, while the Revenue is in appeal in respect of that deleted, vide its sole ground, which reads as under:

(3.) WE shall, as would necessarily be required of us, proceed on an income -wise basis. As regards the income of Rs.14.70 lacs, which is in respect of an advertisement income from hoarding/s earned by the assessee -society, the assessee adduced before us the copy of the order by the tribunal u/s.254(1) in its case in the quantum proceedings (in ITA No.4955/Mum/2005 dated 31.01.2014/copy on record), whereby the tribunal has since deleted the addition in respect of the said income. In this view of the matter, no penalty qua the said amount, it was submitted by the ld. Authorized Representative (AR), would survive. The ld. Departmental Representative (DR), on being confronted with the same, would submit that the Revenue intends to prefer a miscellaneous application against the quantum order by the tribunal (supra). This is as it had failed to take note of the fact that the assessment was in the instant case made u/s.144 of the Act in the absence of assessee furnishing the necessary details of the repairs, claimed to be incurred at Rs.18.80 lacs, against which the said income was set off, pleading for having resultantly suffered a loss on the said activity. Secondly, the said expenditure would, in any case, amount to a capital expenditure, being incurred on structural repairs to the building, so that the assessee ought to have claimed and been allowed depreciation thereon, and no more. As such, it was pleaded by him that the matter be kept in abeyance till the time the Revenue's proposed miscellaneous application stands disposed of by the tribunal.