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2013 (11) TMI 683 - AT - Income TaxCondonation of delay of 118 days Held that:- Relying upon the judgment of Hon'ble Supreme Court in the case of Collector, Land Acquisition Vs. MST. Katiji and Others [1987 (2) TMI 61 - SUPREME Court], assessee was prevented by sufficient cause in filing the appeals in time. The assessee has filed ample documentary evidence in the form of medical certificates, prescription etc. in support of its claim that he is not keeping good health for the past few years Delay condoned. Penalty under section 271(1)(c) on the entire amount of addition made by Revenue Penalty orders passed under Section 271(1)(c), the assessee did not file any appeal but filed revision petition under Section 264 During pendency, the CIT initiated proceedings under Section 263. In the order under Section 263, he set aside the matter to the file of the Assessing Officer and then he dismissed the assessee's petition filed under Section 264 holding the same to be infructuous - Penalty order under Section 271(1)(c) on entire additional income offered in the return filed in response to notice under Section 153A Held that:- Order under Section 263 is not liable to be sustained because it is a settled position that penalty under Section 271(1)(c) is not to be levied on every income. The penalty is to be levied only when the conditions prescribed under Section 271(1)(c) are satisfied. Even when we see the language of Section 271(1)(c), even on concealed income, the levy of penalty is not automatic because discretion has been given to the Assessing Officer to levy or not to levy the penalty which would be clear from the use of the words "may" in Section 271(1)(c). Legality of order passed u/s 263 of the Income tax Act Penalty u/s 271(1)(c) levied on lower side Held that:- Reliance has been placed on the judgment of Honble Bombay High Court in the case of Gabriel India Ltd.[ 1993 (4) TMI 55 - BOMBAY High Court] , wherein it was held that it would not vest the Commissioner with power to re-examine the accounts and determine the income himself at a higher figure. It is because the ITO has exercised the quasi-judicial power vested in him in accordance with law and arrived at a conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. In the present case, the ratio of decision of Bombay High Court would be squarely applicable. The Assessing Officer had levied the penalty on substantial portion of the income assessed. Merely because the Commissioner is of the opinion that the penalty levied by the Assessing Officer is on the lower side and left to the Commissioner he would have levied the penalty on the entire income assessed would not vest the Commissioner with the power of suo motu revision under Section 263 Decided in favor of Assessee. Restoration of the revisions petition U/s 264 which is dismissed as infructuous in consequence of the order passed U/s 263 of the Income Tax Act Held that:- In the additional grounds, the assessee is claiming the relief against the dismissal of order passed under Section 264. Though the relief claimed is only consequential in nature but, Tribunal do not have any jurisdiction to give any direction with regard to order passed under Section 264 Therefore, no any direction given with regard to order passed under Section 264 - Though, all natural consequences of quashing of the order under Section 263 would follow.
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