Commissioner Of Income Tax v. Aditya Birla Nuvo Ltd

dik IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. INCOME TAX APPEAL NO. 1244 OF 2017 Commissioner of Income Tax ...Appellant vsAditya Birla Nuvo Ltd. ...Respondent. ..... Mr Suresh Kumar for the Appellant.Mr Nitesh Joshi I/b Atul Jasani for the Respondent in all appeals. ..... CORAM : AKIL KURESHI & B.P.COLABAWALLA, JJ. FEBRUARY 13, 2019. P.C. : The appeal is filed by the Revenue challenging theJudgment of Income Tax Appellate Tribunal. The following question is presented for our consideration- “(a)Whether on the facts and in the circumstances of the case and in law, theHon'ble ITAT was right in deleting the penalty of Rs.3,37,53,700/- levied u/s271(1)(c) of the Act without deciding the issue on merits but by just relyingon the decision of the Hon'ble Delhi High Court in the case of LiquidInvestment & Trading Co. in ITXA 240 of 2009 dated 05.10.2010.” 2The issue pertains to the penalty levied under Section 271(1)(c)of the Income Tax Appeal, 1961 ("IT Act" for short). TheCommissioner of Income Tax (Appeal) ("CIT(A)" for short) hadallowed the appeal and the Tribunal by the impugned Judgment Pg 1 of 3 8.itxa.1244.2017.db.doc 3The facts on record would suggest that the assessee hadinstalled power plant. On the boiler which wasthe part of the powerplant, the assessee had claimed depreciation of 100 % of normal ratewhich came to 6.52 Crores (rounded off). The A.O. was of the opinionthat the boiler was not put to use for more than 180 days of the yearand that, therefore, the assessee was entitled to only 50 % of thedepreciation claimed. This was the sole ground of addition which ledthe A.O. to impose penalty. 4We find that admittedly the assessee had installed theboiler on 31[st] August 1992 and turbine was thereafter installed andcommissioned in November 1992. It was on account of these factsthat the A.O. held that the assessee was not entitled to thedepreciation for the entire year. 5It can thus be seen that the assessee had placed full factsbefore the A.O. and made bona-fide claim. Merely because, uponappreciation of such facts, the A.O. came to the conclusion that theassessee had not put the boiler to use for a period for excess of 180days and was, therefore, not entitled to depreciation at full rate, Pg 2 of 3 8.itxa.1244.2017.db.doc would not give rise to penalty proceedings. No question of law arises.The Income Tax Appeal is dismissed. No order as to costs. (B.P.COLABAWALLA, J.) (AKIL KURESHI, J.) Pg 3 of 3