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2016 (4) TMI 553 - AT - Income TaxPenalty u/s 271(1)(c) - deemed income is assessed u/s 115JB - rebate u/s 88E - whether penalty is time barred? - Held that:- It is apparent that the Tribunal passed order on 23.12.2011 which was received by the Commissioner [Judicial] dated 23.4.2012 and the penalty order has been passed on 30.10.2012 i.e. within six months from the end of the month in which the Commissioner received copy of the order of the Tribunal which provoked the AO to initiate penalty proceedings. Thus, we are unable to agree with the legal contention of the ld. AR that the impugned penalty is time barred. There was concealment but that had its repercussions only when the assessment was done under normal provisions and procedure of the Act which were not acted upon. Their Lordships further held that in a situation when the deemed income is assessed u/s 115JB of the Act which has become the basis of assessment as it was higher of the two i.e. income calculated under normal provisions and income assessed u/s 115JB of the Act and thus tax has been paid on the income assessed u/s 115JB of the Act which is higher of the two, then concealment had no role to play and becomes totally irrelevant for imposing penalty u/s 271(1)(c) of the Act as concealment did not lead to tax evasion at all. In the present case also the assessee had paid tax on the income calculated u/s 115JB of the Act which was higher than the income calculated under normal provisions of the Act and as per the dicta laid down in the case of CIT Vs. Nalwa Sons [2010 (8) TMI 40 - DELHI HIGH COURT] in this situation penalty u/s 271(1)(c) of the Act is not leviable and thus we concur with the conclusion of the ld. CIT(A). - Decided in favour of assessee.
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