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DCIT (LTU), Vs. M/s International Tractors Ltd., New Delhi. Sonalika House, 283 AGCR Enclave, Karkardooma, Delhi.
September, 24th 2013
                  DELHI BENCH "C" NEW DELHI

                            ITA No. 1459/Del/2013
                            Asstt. Yr: 2005-06
DCIT (LTU),                        Vs. M/s International Tractors Ltd.,
New Delhi.                               Sonalika House, 283 AGCR
                                         Enclave, Karkardooma, Delhi.

                                        PAN: AAACI2270H

( Appellant )                                       ( Respondent )

                Appellant by :    Shri Satpal Singh Sr. DR
                Respondent by :   Shri K. Sampath Adv.



      This is Revenue's appeal against CIT(A)'s order dated 12-12-2012

relating to A.Y. 2005-06.

2.    Sole effective ground raised is as under:

      "On the facts and in the circumstances of the case, the Ld.
      CIT(A) has erred in deleting the penalty levied u/s 271(1)(c) in
      respect of addition of rs. 1,89,25,000/- on account of
      disallowance of deduction u/s 35(2AB) of the I.T. Act as the
      Department has not accepted the order of the ITAT on this issue
      in quantum appeal and has filed an appeal before Hon'ble
      High Court."

3.    Ld. DR fairly concedes that in quantum appeal the ITAT Delhi Bench

"C" vide order dated 11-5-2012 in ITA no. 6071/Del/2010 has deleted the

disallowance u/s 35(2AB).
                                                                       ITA 1459/Del/2013
                                                                International Tractors Ltd.

4.     We have heard both the parties, perused the material available on

record. Since the quantum disallowance made u/s 35(2AB) has been deleted

by the ITAT, the penalty u/s 271(1)(c) imposed on account of such

disallowance does not survive.

4.1.   The CIT(A) has deleted the penalty qua addition u/s 35(2AB) by

observing as under:

       "5. I have carefully considered the facts of the facts of the case
       in the light of the applicable law in this regard. So far as the first
       ground of addition under section 35(2AB) is concerned, since the
       ITAT, which is the final fact finding body, had allowed the appeal
       on this ground, keeping in view the above referred decision of the
       Gujarat High Court, there is in fact no instance of concealment
       or furnishing of inaccurate particulars.

       5.2. However, on the other ground of addition of Rs. 2,10,875/-
       , the appellant could not furnish detail and any supporting
       evidence in claiming deduction under section 37 till the stage of
       appeal before the ITAT. Since the ITAT is the final fact finding
       authority which has upheld the disallowance on this ground and
       there are no evidences that such expenses were wholly and
       exclusively for business purposes and were not capital or
       personal in nature, I hold that the appellant company had
       furnished inaccurate particulars of income in respect of various
       expenses embedded in the amount of Rs. 2,10,875/-.

       5.3. In view of the above, levy of penalty under Section
       271(1)(c) is confirmed to the extent of the above disallowance of
       Rs. 2,10,875/- upheld by the ITAT. The appellant company gets
       relief on the balance amount.

                                                                    ITA 1459/Del/2013
                                                             International Tractors Ltd.

4.2.   Since the quantum addition u/s 35(2AB) stands deleted by the ITAT,

we see no infirmity in the order of CIT(A) in deleting the penalty u/s

271(1)(c) to that extent. The order of CIT(A) is accordingly upheld.

In the result, Revenue's appeal stands dismissed.

Order pronounced in open court on 16-09-2013.

      Sd/-                                          Sd/-
( T.S. KAPOOR )                              ( R.P. TOLANI )
ACCOUNTANT MEMBER                            JUDICIAL MEMBER
Dated: 16th Sept. 2013.
Copy to :
   1. Assessee
   2. AO
   3. CIT
   4. CIT(A)
   5. DR

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