SUNIL AMBWANI, ADITYA NATH MITTAL, J. - (1.) HEARD Sri Bharat Ji Agarwal Senior Advocate, assisted by Ashok Kumar for the appellant.
(2.) THIS Income Tax Appeal under Section 260 -A of the Income Tax Act, 1961 (in short the Act) is directed against the judgment dated 4.4.2012 passed by the Income Tax Appellate Tribunal, Agra Bench, Agra in ITA No. 06/Agr/2011, relating to the assessment year 2002 -03. The department has filed this Appeal on the following substantial questions of law: - "(1). Whether under the facts and circumstances of the case, the Tribunal was correct in deleting the penalty u/s 271 (1) (c) of the Income Tax Act amounting to Rs. 27,61,108/ - fully relying on the decision of CIT (A) and holding this is not a fit case where penalty u/s 271 (1) (c) of the Act is leviable? (2) Whether under the facts and circumstances of the case, the Tribunal was correct in deleting the penalty u/s 271 (1) (c) of the Income Tax Act amounting to Rs. 27,61,108/ -, ignoring the fact that the assessee society was credited the amount deducted from purchase price of sugarcane to share deposit account with the assurance to the shareholders that the shares will be allotted for this amount to all the cultivators. However, no shares have been allotted by the assessee since 1978 -79? (3) Whether under the facts and circumstances of the case, the Tribunal was justified in deleting the impugned penalty of Rs. 27,61,108/ - on the ground on which quantum addition made in the assessment amounting to Rs.90,23,233/ - was confirmed, thus making its own stand contradictory?"
(3.) THE Assessing Officer (AO) made addition of Rs.90,23,233/ - which was confirmed by the Tribunal in quantum appeal, filed by the assessee in ITA No. 203/Agr/2006, for the Assessment Year 2002 -03 vide order dated 27.02.2009. The relevant portion of the finding of the ITAT in quantum appeal is quoted as under: - "5.10. Each of the factors, thus, as found by the Revenue, i.e. non -allowability of interest, absence of liability, no actual issue of capital toward losses, dominion, etc., we find as correctly so. The issue stands further examined from all the applicable angles, even as explained and enunciated by the Apex Court in the case of Siddheswar Sahakari Sakhar Karkhana Ltd Vs. CIT (Supra). The same unmistakably point to the entire impugned sum of Rs.90.23 lacs as representing the assesee's income, so that the same stands rightly assessed as such by the Revenue as its business income u/s 28 (i) of the Act, and the assessee's case as without merit in view of the foregoing factual findings, given the law laid down by the Apex Court per the afore -referred decisions." ;