The Pr. Commissioner Of Income Tax - Central -3 v. Oriental Pathways ( Naqpl^ Pvt. Ltd..:;.^Respondentthrough-With Ii Vi

Signed By:RAM DATTSigning Date:09.10.2024 15:41Certify that the digital and physical file havebeen compared and the digital data is as perthe physical file and no page is missing. $-36,39,40,41,47,49*IN THE HIGH COURT OF DELHI AT NEW DELHI+ITA 929/2018 & CM No.34866/2018 Date of decision; 28^ August, 2018 THE PR. COMMISSIONER OF INCOME TAX - CENTRAL -3 Appellant Through: Mr. Ruchir Bhatia, Advocate ^ versus ~ ORIENTAL PATHWAYS ( NAQPl^ PVT. LTD..:;.^RespondentThrough-WITH II vi,, ITA 932/2018 & C^M No.34867/2018 •'".i •• I.V 'rV.:' THE PR. COMMISSIONER OFTNGOME TAX - CENTRAL -3 ',1^ \ AppellantThrough: 1^. Ruchir Bhatia, Advocate S' .]* f 1,versus , n,-?,ORIENTAL PATHWAYS ( NAOPui)!^ RespondentThrough ITA 933/2018 & CM No.34868/2018 THE COMMISSIONER OF INCOME TAX - CENTRAL -3 AppellantThrough: Mr. Ruchir Bhatia, Advocate versus ORIENTAL PATHWAYS ( NAGPUR) PVT. LTD RespondentThrough WITH ITA 934/2018 THE COMMISSIONER OF INCOME TAX - CENTRAL -3 AppellantThrough: Mr. Ruchir Bhatia, Advocate versus ORIENTAL PATHWAYS ( NAGPUR) PVT. LTD.... Respondent,Through r , , I, - J ,;V.-,r ^i-':-'4ITA 941/2018 & Sji:%:MCT/2018 V THE PR. COMMISSIONEt;:GF:;^^^^ - CENTRAL-3.. AppellantThtdVght V i;|]\/tr||^^ V i;|]\/tr||^^ i;|]\/tr||^^ Bhatia, Advocate. ThtdVght V i;|]\/tr||^^ V i;|]\/tr||^^ i;|]\/tr||^^ .Bhatia, Advocate. Advocate.- 1 k; n r;versus J ^ORIENTAL PATHWAYS |ilfeOPJE)^i^^ LTD RespondentThrougkT-S\^.3-h:'?. WITH ITA 94fe0l8fiigM Na^lrfS/2018 THE COMMISSIONER OF INCOME TAX - CENTRAL -3 AppellantThrough: Mr. Ruchir Bhatia, Advocate versus ORIENTAL PATHWAYS ( NAGPUR) PVT. LTD RespondentThrough CORAM:HON'BLE MR. JUSTICE SANJIVICHANNAHON'BLE MR. JUSTICE CHANDER SHEKHAR SANJIV KHANNA, J. (ORAL) Afore-captioned appeals by the Revenue under Section 260A ofthe Income Tax Act, 1961 ('Act' for short) in the case of OrientalPathways (Nagpur) Pvt. Ltd. relate to Assessment Years 2009-2010 to2013-2014 and arise from a common order of the Income TaxAppellate Tribunal dated 28.2.2018. The impugned order upholds theorder passed by the Commissioner of Income Tax (Appeals)('CIT(Appeals)' for short),, deleting '^the penalty imposed by theAssessing Officer under Section 27 r(i)(c) of the Act. 2. The respondent/assessed,, durmg.tft^ relevant period, wasmainly engaged in the business pfj deyelopment, design, financing,' - !•' 'r' 'f| f-;procurement, engineering, constmctihii/^ and maintenance ofthe project highway of on build, operate andtransfer basis. They werd'^entitledjio.-dbllect toll from the users torecoup the cost of reconstruction,-maintenance and operations. Therespondent/assessee had claimed depreciation,..on roads @ 10% underSection 32 of the Act. This'blarnifofj the^ for depreciation wasaccepted by the Assessing Officer in the regular assessment underSection 143(3) of the Act for the assessment year 2009-2010. 3. Subsequently, there was a search and seizure operation underSection 132 of the Act on 10.12.2012 in case of Bakshi Group,wherein the premises of the respondent/assessee were also covered.Consequent to the said search, notice under Section 153 A was issued.In response to the said notice, the respondent/assessee had filed their return of income, in which again depreciation @ 10% under Section32 of the Act was claimed. 4. In the present appeal, we are not concerned with theassessment proceedings and whether or not the respondent-assesseewas entitled to claim depreciation on the NH-6 constructed by them onbuilt, operate and transfer basis. In the present case, we are concernedwith whether or not the Tribunal was right in upholding the orderpassed by the CIT (Appeals) deleting penalty under Section 271 (l)(c)of the Act imposed by the Assessirig-"Officer. I 5. The relevant portion ofithe order by the CIT'(Appeals)reads as under;- f .y '''Y -I,,! return of income, in which again depreciation @ 10% under Section32 of the Act was claimed. 4. In the present appeal, we are not concerned with theassessment proceedings and whether or not the respondent-assesseewas entitled to claim depreciation on the NH-6 constructed by them onbuilt, operate and transfer basis. In the present case, we are concernedwith whether or not the Tribunal was right in upholding the orderpassed by the CIT (Appeals) deleting penalty under Section 271 (l)(c)of the Act imposed by the Assessirig-"Officer. I 5. The relevant portion ofithe order by the CIT'(Appeals)reads as under;- f .y '''Y -I,,! "7. The appellant return on29.09.2009, 959/-. Thesame was assesse^^^ae^ of the Act oni^gti^h^/43(3) 23.12.2011 at a loss200/-, by makingdisallowance of Rs.34,12,759/- on account of preliminaryexpenditure. During the said assessment proceedings, nointerference was^frtddeifBy the^i'A&^on other issuesincluding depreciation, though the appellant has claimeddepreciation on road @ 10% of the capitalized cost. ASearch was carried out in Bakshi group of cases on10.12.2012 and the case of appellant was also covered insearch. Accordingly, notice under section 153A wasissued and appellant submitted return of income inresponse to the said notice on 03.02.2014, declaring lossof Rs.34,24,25,559/- which included depreciationamounting to Rs.30,63,57, 685/-, on roads. 7.1 The appellant is stated to have been mainly engagedin the business of development, design, financing,procurement, engineering and construction, operationand maintenance of the project highway on NH-6,Maharashtra on build, operate and transfer basis andcollecting, toll. During assessment proceedings theappellant was asked to substantiate the claim ofdepreciation on road @10%. The appellant submittedthat it has claimed depreciation in view of the provisionsof section 32 of the Act,as per its bona fide belief thatdepreciation is allowable to it as per law. However, itwas submitted by the appellant before AO that in view ofthe circular no. 09/2014'dated, 23.04.2014, it has beenclarified by the CBDT^thciffhe toll fpqds are intangibleassets and therefore" po d^p/fcmtipn can be allowedhowever, the assessde cgn/clm off of capitalizedexpenditure equally : over tljb. . t6ff< concession period.Based on mentioned .cffcularf appellant withdrew theclaim of depreciation pi vpridusliassessment years andI• ''H.:' i-'lt'. ''claimed the writingC:qffi0f., ei^nqitiire as per the saidcircular. The revfi^ti provided by theappellant. Accordiii^iyr^lkBi^ntk^fie submission of theappellant, the claim of deprecidtioh has been disallowed.It is observed from the assessment order that this additionis not based on dn^majemalor eyidgriqe found and seizedduring search as nothing ffds bieri brought out on recordin this regard. The claim of the appellant with respect tothe expenditure incurred has been allowed in view of theclarification by the CBDT in the above mentionedcircular. Thus, net addition worked out atRs.15,88,50,307/ -. The penalty for concealment ofincome/furnishing inaccurate particulars of income undersection 271 (I)(c) was initiated. The appellant did notdispute the issue of addition made in the assessmentorder and no further appeal was filed. 7.2 During penalty proceedings, the AO did notconsidered the submission by the appellant favourably. Itwas mentioned that the depreciation is allowable only onthe assets which are owned wholly by any assessee andCBDT has only given its further clarification and notmade any amendment in the existing law. It was alsostated that appellant has only revised its claim ondepreciation on the query of the AO, after a span of 11months which indicates that appellant has made wrongclaim willfully. After discussing in detail and relyingupon various judgments the AO held that it isconcealment of income and levied minimum penalty@100% of tax sought to be , evaded, which comes toRs.4,90,84,745/-. ; 7.3 Before examming-^j^thfifjl-f^^^edient to reproducethe circular no. 09/2014 issuediby4heCBDTon23.04.2014which is as follows:-v .i , ft;;- 7.3 Before examming-^j^thfifjl-f^^^edient to reproducethe circular no. 09/2014 issuediby4heCBDTon23.04.2014which is as follows:-v .i , ft;;- •. ' ' .T' '.i i}vv"Sub: Clarificdtidnfregarding treatment ofexpenditure for development ofroads/highw@>s_:j.0u:,lB^;^^qgreement underIncome Tax^i;f(^:0irpgi^mg^ It has come to the notice of the Board thatdisputes r . have arisen as to, whether theexpenditureVinf.pr'^ed /development andconstruction of infrastructural facilities likeroads/ highways on build operate-transfer(BOT) basis with right to collect toll is entitledfor depreciation under section 32(I)(ii)of theAct or the same can be amortized by treating itas an allowable business expenditure under therelevant provisions of the Income Tax Act,1961. 2. In such projects, (hereinafter referred asassessee) in terms of concessionaire agreementwith government or its agencies is required toconstruct, develop and maintain theinfrastructural facility of roads/highways whichinter alia includes laying of road, bridges,highways, approach roads culverts, publicamenities etc. at its own cost and its utilizationthereof for a specified period. In lieu ofconsideration of,the expenditure incurred onconstruction, operation and maintenance of theinfrastructure facility covered by the period ofthe agreement, tPie assdssee is accorded a rightto collect tofi frdm'fisery^^^ facility. Theexpenditure incurred^ ' assessee ondevelopment- and of suchinfrastructufdl.fiiciliiy(}ja(ef Capitalized in theaccounts. It is sjeen. that in returns-of-income,II '.KI ri?^'assessees are g^ejal^jy^irning depreciationon such it ascapfigliz0.,;ejcp^t^fiure creating an 'intangiple._. of section32(fi(ii)of 't^^^^fifii}e(fi^ssessments, suchclaims are beings disallowed by the AssessingOfficer on the grounds that such infrastructuralfacility if nolpyvned, whollyfm partly, by thetaxpayer whiBkAS' dn '^sehtia^ condition forclaiming depreciation and further right tocollect toll does not fall in any of the categoriesof 'intangible assets' specified in sub-clause(ii)ofsub-section (1) ofsection 32 of the Act. 3. In BOT arrangements for development ofroads/ highways, as a matter of generalpractice, possession of land is handed over tothe assessee by the Government/notified authority for the purposes of construction of theproject without any actual transfer ofownership and such assessee has only a right todevelop and maintain such asset. It also enjoysthe benefits arising from use of asset throughcollection of Toll for a specified period withouthaving actual ownership over such asset.Therefore, the rights in the land remain vestedwith the Government or its agencies. Thus, asassessee does not hold any rights in the projectexcept recovery of toll fee to recoup theexpenditure incurred, it cannot therefore betreated as an owne.r of the property, eitherwholly or pai^ljffoiffnnrfids allowability ofdepreciation Under !sedtif)nfij2(l)(ii)of the Act.Thus, presentpvoyififfifj^iHe Act do not allowclaim of deprecidHdn.pfiif0l ways due to nonfulfillment of dwftehhip)erifieria in such cases.-j I' ' i- ii .L.. i I.'. 4. There is Jw/dp^Ujflfc^ the assesseeincurs exp0hditfi0f$fy$t }fi project fordevelopment; of rpdfik/lii§^a^ he is entitledto recover-'cost^Tljwid0^by him towardsdevelopment of such facility (comprising ofconstruction cost and other, pre-operativeexpenses)' (^fiimh^0hP'ff(^fBiiction period.Further, expenditure incurred by the assesseeon such EOT projects brings to it an enduringbenefit in the form of right to collect the tollduring the period of the agreement. Hon'bleSupreme Court in the case ofMadras IndustrialInvestment Corporation Ltd. vs. CIT in 225ITR802 allowed spreading over of liability over anumber of years on the ground that there wascontinuing benefit to the company over a 4. There is Jw/dp^Ujflfc^ the assesseeincurs exp0hditfi0f$fy$t }fi project fordevelopment; of rpdfik/lii§^a^ he is entitledto recover-'cost^Tljwid0^by him towardsdevelopment of such facility (comprising ofconstruction cost and other, pre-operativeexpenses)' (^fiimh^0hP'ff(^fBiiction period.Further, expenditure incurred by the assesseeon such EOT projects brings to it an enduringbenefit in the form of right to collect the tollduring the period of the agreement. Hon'bleSupreme Court in the case ofMadras IndustrialInvestment Corporation Ltd. vs. CIT in 225ITR802 allowed spreading over of liability over anumber of years on the ground that there wascontinuing benefit to the company over a period. Therefore, analogously, expenditureincurred on an infrastructure project fordevelopment of roads/ highways under BOTagreement may be treated as having beenmade/incurred for the purposes of business orprofession of the assessee and same may beallowed to be spread during the tenure ofconcessionaire agreement. 5. In view of above. Central Board of DirectTaxes, in exercise of the powers conferredunder section 119 of the Act hereby clarifiesthat the cost of construction on development ofinfrastructure facility., of roads/highways underBOT projects mpyfis-dinorfiz^ claimed asallowable business exppfidftUre under the Act, 6. The ainoftizatidn' ialjowable may becomputed at tl^q rate^^^ ensures that thewhole of ther cofi ipduifed in creation ofirfiastructmfiy ^ili^:t^(^yoad/highway isamortized period ofconcessioncdfe^f^t0^^§^^^ excluding thetime taken for credtion fifsuch facility. 7. In the r case where an assessee has claimedany deduction qufpf inifffiif^^^of infrastructure facility of roads/highwaysunder BOT project in earlier year, the totaldeduction so claimed for the assessment year tothe assessment year under consideration maybe deducted from the infrastructure facility ofroads/highways and the cost so reduced shallbe amortized equally over the remaining periodof toll concessionaire agreement. 8. It is hereby clarified that this circular isapplicable only to those infrastructure projectsfor development of road/ highways on BOTbasis where ownership is not vested with theassessee the concessionaire agreement. 9. This may be brought to the notice of allconcerned." 7.4 It is observed from the above circular that the boardwas aware of the dispute regarding claim of depreciationwith respect to the built operate transfer (BOT)agreement and this is squarely covered in the case of theappellant, which has also(been accepted by the AO. In thesaid circular, it is clearly .bfqught, out. that in return ofincome, assessee's are geherally(claim depreciation onsuch capitalized expendilufefffeM it as an intangibleassets in terms of section 3f(l)(M)iff the Act. Therefore,the original claim /(^(fief^pellant to claim suchdepreciation was not /Tftdhdalorik case but seems to bethe general practicerq^^qt/fjmu^py and the claim ofdepreciation by it y^ds-iYfadk^ di^jdef/fjie bona fide beliefthat it is an aUowdbM^3di00i^.M/Further, it is alsoclarified by the circulardhat^'^he/e the assessee incursexpenditure on a project, he is entitled to recover costincurred by allowed suchexpenditure incurred, '^ spreading ^ over this liability indifferent years. 7.5 It is also observed that in the first round of scrutinyassessment, no such addition was made, but alloweddepreciation as claimed by the appellant. It is only withrespect to the assessment proceedings under section 153Aof the Act that this issue has been raised by the AO andbased on the circular by the CBDT, revision of the claimof the depreciation made before AO by the appellant. All the facts regarding claim of depreciation was before theAO during first round of scrutiny assessment as well aslater on. 7.5 It is also observed that in the first round of scrutinyassessment, no such addition was made, but alloweddepreciation as claimed by the appellant. It is only withrespect to the assessment proceedings under section 153Aof the Act that this issue has been raised by the AO andbased on the circular by the CBDT, revision of the claimof the depreciation made before AO by the appellant. All the facts regarding claim of depreciation was before theAO during first round of scrutiny assessment as well aslater on. 7.6 Here it is to be mentioned that penalty proceedingsare different from the assessment proceedings and simplybecause an addition has been made and not challengedby the assessee shall not make a case for imposition ofautomatic penalty for concealment. Any claim which isfound incorrect by the AO and disallowed will not attractthe penalty for concealment in a routine manner. Merely,because the appellant had claimed the depreciation,which was not accepted in full, and disallowed, that itselfwould not attract the penal .under section 271(l)(c). Inthe present case, all tfie fdcis were disclosed to the AOand in fact in the first trpupdfi,cf scrutiny assessment, the.-•' -V' 'V^.. ''-'Vv ' t'-" ''said depreciation wdsP hoffidisdllowed and accepted.Therefore, in view off the rqtip daid down by Hon'bleSupreme Court in fidsdr^ p:'f CIT vs. Reliancej. i , !' * .'".t . 'iPetroproducts P. Ltd. AlfifiTRfPfSfiSC) and the decisionof Hon'ble jiirisdicfi6hal70gHi^0d'f:Of Delhi in the caseof CIT us. Brahmd^fiffi^pri^i^ (2012) 348ITR339, the penalty is Liot'l^immfifihe same is applicablein the case of appellant. 7.7 It is also to'be mentioned that^mjkn the return wasfiled in response to'^ hofiee under section 153A on3.02.2014, the matter was debatable due to the differencein legal interpretation between the assessee and therevenue authorities and the claim was made underbonafide belief that depreciation is allowable on suchcapitalized value of road. This has also beenacknowledged as the practice of industry. The circular ofCBDT, clarifying the issue has been issued on23.04.2014, which is after the submission of return by theappellant. Since, the matter was clarified, the appellant opted to claim expenditure incurred on project fordevelopment, construction and other operativeexpenditure during construction period as per the saidcircular by spreading over to the different accountingyears and accordingly, revised the claim of depreciationby not claiming on road. It is the appellant who broughtthis circular to the knowledge of AO, though duringassessment proceedings it was asked by the AO to justifythe same. Hence, during assessment proceedings,following the clarification of the CBDT, the appellantprovided revised working and depreciation on road waswithdrawn whereas the expenditure has been claimed.The same was accepted by the AO. The contention of theAO while levying penalty, \ that there was a delay insubmission of revised working by the appellant is also nottenable because one cannot pxpect the appellant to actimmediately suo-moto. This 'will - also not form thesubstantial reason to, imposed;,penalty for concealmentbecause the appellant(;.iffe^f}^ brought this to theknowledge of AO and without disfmting, accepted therevised working. Since, it was a' ccepfyd by the appellantrather offered by iM0bre, no appeal was'' Ill rpreferred. Therefore; 4HiM aTdr0^cannot be the basis forimposition of penalty. 7.8 In the penalty fffffer, the AO Hc^ffflied upon variouscase laws. The case of Clf vs. Usha International Ltd.212 Taxman 519, 2013 relied upon by the AO relates tothe revision of return consequent upon surveyproceedings, which was disclosed after being detectedduring the course of survey is not applicable as the factsare distinguishable. The case of appellant is not relatedto survey proceedings nor a disclosure of additionalincome but claim of depreciation, revised in view of theBoard's circular. With respect to the ratio laid down in 7.8 In the penalty fffffer, the AO Hc^ffflied upon variouscase laws. The case of Clf vs. Usha International Ltd.212 Taxman 519, 2013 relied upon by the AO relates tothe revision of return consequent upon surveyproceedings, which was disclosed after being detectedduring the course of survey is not applicable as the factsare distinguishable. The case of appellant is not relatedto survey proceedings nor a disclosure of additionalincome but claim of depreciation, revised in view of theBoard's circular. With respect to the ratio laid down in the case of KP Madhusudan V5. CIT 251 ITR 99, it isseen that the same is not applicable in the present casebecause the appellant itself offered the withdrawal ofdepreciation, which was even not detected by the then AOin the first round of scrutiny proceedings. All the factsregarding claim of depreciation on road was clearlymentioned in the details submitted by the appellant andalso mentioned in the audited accounts. Therefore, theappellant has not concealed any fact nor furnished anywrong particulars of income and, duly discharged its duty.Therefore, this is distinguishable. The AO has also reliedupon the ratio in the case of CIT vs. ZoomCommunication P. Ltd. ip ITA^i.Np.O ofthe said case is not-applicable to the case of appellantbecause in the said case it was foiind that the dssesseewas not acting bonafide and ih'ere was a positive incomeand therefore lead fdl;;tax :evasibn:: In the case of theappellant, it was subf^j(kdfQ}scrutiny earlier and all thefacts were on record with • respect to the claim ofdepreciation under .the bona fide belief. The matter wasdisputed as itself ifcknowledged in the circular by theCBDT and accordingly after.clarffication, the appellanthas withdrawn its claim4n- the -ass proceedings.The case of CIT vs. Brahmaputra Consortium Ltd., reliedupon by the appeUantJs "l" mbsequentjddhe h -11 ^ ' w-- -0-decision of CITVS. Zoom Communication P. Ltd:-(supra) as mentioned bythe AO. 7.9 It is also seen that the AO has not clearly brought outthat whether it is a case of furnishing inaccurateparticulars of income or concealment of income as it isstated in para 5 that: "Consequentially, as the default of the assesseeunder section 271(l)(c) is established, penalty ofRs.4,90,84,745/- @100% of the tax sought to be evaded for furnishing inaccurate particulars ofincome and thereby concealment of income asdiscussed above, is imposed under section271(l)(c)oftheITAct, 1961." 7.10. In view of the above facts and discussions inforegoing paragraphs regarding position of law,considering the submission by the appellant and lookingto the circumstance in which the appellant revised itsclaim, based on the clarification by the CBDT, theconcealment of income for imposition of penalty undersection 271 (l)(c) of the Act is not established. Therefore,relying upon the ratio laid down in the case of CIT V5.Brahmaputra Consortiuin ..Ltd f and CIT vs.Reliance PetroproductfiP. 'Bid/fSdpm) and on the factsand circumstances of thf 'case, .itds f eld that penalty forconcealment of incomdMndef f' ectipn 271(l)(c)of the Actis not attracted in the - case and the same is deletedaccordingly.",r-•' i'! ;J jr-' ' ^t f"- \x6. The aforesaid clearly and correctlyelucidates on the differej^ce-^ proceedings andpenalty proceedings and applieSx|^planation (1) to Section 271 (1) (c)of the Act. It refers to divergence of legal opinion on the questionwhether an assessee, wh6i%as, infrastructure projectsuch as roads or highways on build, operate and transfer basis couldclaim depreciation or was entitled to treat the entire cost as amortizedexpenditure, an expression not used in the Act. These were highlydebateable and contentious issues. Noticeably, the Assessing officerhad allowed the claim for depreciation on roads @ 10% under Section32 of the Act in the original assessment proceedings. 7. Learned counsel for the Revenue has drawn our attention toCircular No.9 of 2012 dated 23'"'' April, 2014, issued by the CentralBoard of Direct Taxes. This circular has been reproduced in thereasoning given by the CIT (Appeals) and hence, is not being referredto and quoted separately. Circular refers to disputes that had arisen onthe question of depreciation or amortization/revenue expenditure. TheBoard felt that the infrastructure facility was not owned partly orwholly by the tax payer and hence-would. not satisfy the essentialcondition of "ownership" required fdf claiming. depreciation. At thesame time, it was observed that the assessee had incurred expenditure,which had to be recovered and abcounted Tor to compute taxableincome. The Board felt that amortization shduld be ratealloweC|t.the which ensures that the entire expenditure incurred Tor creation ofinfrastructure facility would .be amortized evenly over the period of|i' ^ I "'-fit'..- ^concessionaire agreement after excluding the time taken for creationof facility. 8. No doubt, this circuit suppofts^the'case of the Revenue but wewould notice and record that circular merely is an opinion and theassessee can contest , andfsubniif to the.cqntrai^f The issue in question^^ i «• ^ ';was not covered by a decided judgment of the jurisdictional HighCourt or the Supreme Court. Pertinently, paragraph 7 of the circularstates that assessee could have claimed deduction in an earlier year.This deduction would necessarily imply depreciation. In such cases,the assessee could deduct the amount of "depreciation" to compute thereduced cost of infrastructure facility for road/highway and amortizedthe reduced amount equally oyer the remaining period of theconcessionaire agreement. In the present case, the respondent-assessee had already filed return for the year in question claiming deprecation,which had been allowed by the Assessing Officer. In the aforesaidposition the respondent-assessee did not consider it appropriate tomodify the claim that had been allowed and accepted in the regularassessment in the return filed pursuant to notice under Section 153Aof the Act. The conduct of the respondent-assessee or examination offacts has been found and held to be bonafide. Facts of the case cannotand would not justify levy of penalty under Section 271(l)(c). 9. Findings of the CIT (Appeals) and the Tribunal deleting penaltyare reasonable and justified and -primarily predicated on facts. Noground or reason to interfere with the prdef,of the Tribunal, affirmingthe order of the CIT (Appeals), is made 10. The appeal and pending applications are dismissed without anyorder as to costs. ^ -Lie.^ANJIVKHANNA, J. AUGUST 28, 2018tp CHANDEl^ SHEKHAR, J.