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2015 (11) TMI 1781 - ITAT MUMBAIPenalty u/s 271(1)(c) - income of the assessee is brought to tax under the provisions of 115JB and tax was charged on book profits pursuant to these provisions and the disallowances made by the AO under the normal provisions of the act - HELD THAT:- The appellant had been assessed u/s115JB Act and the various disallowances made in the assessment order did not have any impact on the tax liability of the assessee.The income computed under the normal provisions of the act is less than the book profits of the assessee. We are of the considered opinion that the penalty u/s 271(1)(c) of the act cannot be levied. The case of the assessee is fortified by the decision of the Delhi High Court v/s Nalwa Sons Ltd. [2010 (8) TMI 40 - DELHI HIGH COURT] wherein the income was computed in accordance with normal procedure is less than the income determined special provisions u/s 115JB and thus the income of the assessee was assessed u/s 115JB and not under the normal provisions and the tax was paid accordingly on the income as computed u/s 115JB of the Act. Once the tax is levied on the income of the assessee u/s 115JB then the case the concealed of income have no role to play and would not lead to tax evasion and therefore, penalty cannot be imposed on the basis of disallowances or additions made under regular provisions. Further in the case of CIT v/s City Tiles [2014 (5) TMI 400 - GUJARAT HIGH COURT] has held that where the addition to the income of the assessee did not change the tax liability of the assessee as the assessment was made u/s115JB of the book profits penalty could not be imposed. The facts of the assessee are squarely covered by the above decisions and we therefore, respectfully following the decisions of the High Court, we delete the penalty imposed u/s 271(1)(C) by allowing the appeal of the assessee.
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