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2019 (8) TMI 1263 - AT - Income TaxPenalty u/s. 271(1)(c) - income accrued in India - income outside India from salaries - non-resident OR resident - period of stay outside India - HELD THAT:- The assessee on the strength of being outside India for a period of 205 days including said period of 30 days of stay outside India from 14.09.2008 to 13.10.2008 had claimed that his income outside India from salaries to the tune of ₹ 27,20,633/- is not chargeable to tax in India , but the AO was of the view that the said salary income is chargeable to tax in India as assessee stayed outside India in Abu Dhabi for the period from 14th September to 13th October 2008 not for the purposes of employment outside India as he was in employment with Triton Holding Limited, India and his salary as well reimbursement of expenses were paid by said company Triton Holding Limited, India . This involved interpretation of provisions of Section 6(1)(a) and (c) read with Explanation 1(a) and 2(30) of the 1961 Act. Once substantial question of law against quantum additions are admitted by Hon’ble High Court in appeal filed u/s 260A, wherein the taxpayer is allowed to enter the doors of the Hon’ble High Court, , the tribunal shall refrain from deciding the issue even in penalty proceedings u/s 271(1)(c) keeping in view judicial propriety and discipline, the tribunal being lower in hierarchy than Hon’ble High Court. Once the High Court is seized of the issues which are admitted by Hon’ble jurisdictional High Court against quantum additions, the tribunal shall refrain from deciding even penalty levied u/s 271(1)(c) on merits. Section 275(1A) comes to the rescue of Revenue as in the instant case before us and the most appropriate course of action in such situations for tribunal shall be restore the matter back to the file of the AO to adjudicate afresh levy of penalty u/s 271(1)(c) against assessee read with Section 274 & 275(1A), wherein the AO be directed to pass penalty order u/s 271(1)(c) r.w.s 274 & 275(1A). Thus, we are restoring issues in this appeal to the file of the AO for fresh adjudication keeping ,inter-alia, provisions of Section 275(1A).
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