TMI Blog2008 (6) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... g the penalty under section 271(1)(c), when the additions made in the assessment order have been confirmed in the quantum appeal by the Hon ble Tribunal. 2. On the facts and in the circumstances of the case, the learned CIT(A) has erred in not considering the facts of the case of Ram Commercial Enterprises Ltd. and other similar cases have been referred to a Larger Bench by the Hon ble Delhi High Court itself in the case of CIT v. Sanjeev Kumar Gupta (ITA No. 326 of 2006). 3. On the facts and in the circumstances of the case, the learned CIT(A) has erred in not considering decision of the Hon ble Supreme Court of India in the case of D.M. Manasvi v. CIT 1972 CTR (SC) 437 : [1972] 86 ITR 557 (SC) and the decision of Hon ble Madras High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment should clearly plead in the memorandum of appeal that the appeal falls in the exceptions and in the absence of such a pleading in the memorandum of appeal, normally the appeal should not be entertained. It was also submitted that in the present case, there is no such pleading in the memorandum of appeal that this appeal of the revenue falls within the exceptions provided for in the instructions. 4. Regarding remaining two appeals for assessment years 2000-01 and 2001-02 i.e. ITA Nos. 4059/Delhi/2007 and 4060/Delhi/2007, it was submitted by him that in these two years, the matter should be restored back to the file of the learned CIT(A) for a decision on merit, because in the impugned order, the learned CIT(A) decided the issue in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. 7. We have considered the rival submissions and perused the material on record and have gone through the judgment cited by the learned Authorised Representative of the assessee. We are in agreement with him that the appeal of the revenue for assessment year 1999-2000 is not maintainable because the tax effect is only Rs. 23,947 which is much below the said limit of Rs. 2 lakhs as per CBDT Instruction No. 2 of 2005, dated 24-10-2005. Regarding the contention of the learned Departmental Representative of the revenue that the tax effect should be considered cumulatively including the tax effect in assessment years 2000-01 and 2001-02, we find that this issue is covered in favour of the assessee by this Tribunal judgment rendered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order, the learned CIT(A) had decided the issue in favour of the assessee on the basis of legal ground that satisfaction was not recorded by the Assessing Officer before initiating penalty proceedings. On this aspect, the Act is amended with retrospective effect. The learned CIT(A) in the impugned order has not decided the issue on merit, and hence the issue of penalty in these two years has to go back to the file of the learned CIT(A) for a decision on merit, and, therefore, we set aside the order of the learned CIT(A) in these two years i.e. assessment years 2000-01 and 2001-02 and restore the matter back to his file for a decision on merit. 9. In the result, the appeal of the revenue for assessment year 1999-2000 i.e. ITA No. 40 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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