2014 (6) TMI 103

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....tt, A.R. ORDER Per Shri Mukul Kumar Shrawat, Judicial Member This is an appeal filed by the Revenue arising from the order of learned CIT(A)-III, Baroda, dated 06.05.2011 and the only ground is about the deletion of penalty of Rs.5,43,426/- levied u/s. 271(1)(c) of IT Act. 2. Facts in brief as emerged from the corresponding assessment order passed u/s.143(3) dated 18.12.2008 and the pe....

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....alized that being in full agreement with the finding of his learned predecessor the ground was dismissed. With this brief factual background, we have been informed that in the past years for A.Ys. 2004-05 and 2005-06 ITAT 'D' Bench Ahmedabad in ITA No.125 and 126/Ahd/2009 vide an order dated 31st of October, 2012, the issue was decided in assessee's favour, vide paragraph 27, reproduced below: ....

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....ly for the last quarter while in the year under appeal the job work has been done for the entire year. In the absence of such material on record no addition u/s.40A(2)(b) for excessive or unreasonable payment can be made in view of various decisions relied by the assessee. As the onus of proving that the payment is excessive or unreasonable is on the Revenue and not on the assessee as per the prov....

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....s deleted by the Respected Coordinate Bench, the penalty for the year does not survive. Although, we have been informed by learned DR that against the order of learned CIT(A) for the year under consideration who had confirmed the quantum addition, the assessee had not preferred an appeal before the Tribunal, but still mere not filing of an appeal before the Tribunal do not alter the legal position....