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2015 (7) TMI 441 - AT - Income TaxRectification of order passed - penalty levied u/s 158BFA(2) - Held that:- Tribunal has considered the decision rendered by the co-ordinate bench in the case of Ekta Exports (2015 (4) TMI 617 - ITAT MUMBAI). The Tribunal has noted down that the Explanation 1 to sec. 271(1)(c) provides that an assessee can escape from penalty levied u/s 271(1)(c) of the Act, if the bonafides of the assessee are proved. The co-ordinate bench of Tribunal, in the case of Ekta Exports (2015 (4) TMI 617 - ITAT MUMBAI), had followed the decision rendered in the case of Nayan Builders and Developers Pvt Ltd Vs. ITO (2011 (3) TMI 46 - ITAT MUMBAI ), wherein it was held that the admission of substantial question of law by the Hon'ble High Court lends credence to the bona fides of the assessee. - Tribunal has also taken the view that the question of examination of bona fides of the assessee shall arise only in respect of penalty levied u/s 271(1)(c) of the Act, in view of the Explanation-1 given under sec. 271(1)(c) of the Act. Since the provisions of sec. 158BFA(2) does not contain any provision as that of Explanation 1 to sec. 271(1)(c) of the Act, the Tribunal took the view that the contention that "bona fides of the assessee" due to admission of substantial question of law by the Hon'ble High Court is not applicable in respect of penalty levied u/s 158BFA(2) of the Act. On appreciation of these legal points, the Tribunal did not follow the decision rendered by the co-ordinate bench in the case of Ekta Exports (2015 (4) TMI 617 - ITAT MUMBAI). - Tribunal has taken a conscious view of the matter by duly considering all the relevant provisions of the Act and accordingly we do not find any merit in the miscellaneous application filed by the assessee - Decided against assessee.
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