TMI Blog2011 (1) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... pendently on merits as discussed ,the Court does not find any reason to interfere with the ultimate order passed by the Tribunal - Decided in favour of assessee. - 1070 of 2009 - - - Dated:- 10-1-2011 - MS. JUSTICE HARSHA DEVANI, MR. JUSTICE H.B.ANTANI, JJ. MR MR BHATT, SR. ADVOCATE with MRS MAUNA M BHATT ORAL ORDER MS. JUSTICE HARSHA DEVANI 1. In this appeal under section 260A of the Income Tax Act, 1961 (the Act), the appellant revenue has challenged order dated 12th December, 2008 made by the Income Tax Appellate Tribunal (the Tribunal) proposing the following question:- Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the CIT(A) in deleting the penalty of Rs.4,65 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of law. Referring to the provisions of section 271(1) of the Act, and more particularly to Explanation (1) thereof, it was submitted that the same lays down that where in respect of any facts material to the computation of the total income of any person under the Act, (i) such person fails to offer an explanation or offers an explanation which is found by the Assessing officer or the Commissioner (Appeals) to be false; or (ii) such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bonafide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him; then the amount added or disallowed in computing the total income of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpenses which were reimbursed by Sandoz India Ltd. Sandoz India Ltd. had deducted tax at source on the payments made to the assessee because of the provisions of section 194C of the Act wherein it had been specified that any person responsible for paying any sum to any resident for carrying out any work should deduct tax on such sum. As the reimbursement of the expenses did not form part of the income of the assessee, the assessee had not shown the amount of Rs.17,62,761/- as income in the profit and loss account but the Assessing Officer had considered the same as part of the trading receipt and made the addition. It was the case of the assessee before the Commissioner (Appeals) that payer company Sandoz India Ltd. had deducted tax under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent under section 271(1)(c) of the Act and accordingly cancelled the same. 6. The Tribunal in the impugned order has concurred with the findings recorded by the Commissioner (Appeals). The Tribunal has further recorded that the Assessing Officer while levying penalty has not discussed how the assessee had concealed particulars of income, particularly when the assessee had recorded details of the expenditure in the books of accounts. However, in the reasoning adopted by the Tribunal, the Tribunal has referred to the proviso to Explanation (1) to section 271(1) of the Act and has held that the fact that the explanation offered was not substantiated will have to be established by the Income Tax Department. The Tribunal has further held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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