TMI Blog2012 (4) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... - ITA 999/2011, ITA 1091/2011 - - - Dated:- 18-4-2012 - MR. JUSTICE SANJIV KHANNA, MR. JUSTICE R.V. EASWAR, JJ. For Appellant: Mr. Abhishek Maratha, sr. standing counsel with Ms. Anshul Sharma, Adv. For Respondent: Mr. M S Syali, Sr. Adv. with Mr. Mayank Nagi, Ms. Husnal Syali, Advs. SANJIV KHANNA, J: (ORAL) These two appeals by the Revenue in the case of Central Warehousing Corporation, the respondent-assessee, relate to assessment years 2003-04 and 2004-05. By the common impugned order dated 15.11.2010, Income Tax Appellate Tribunal ( Tribunal‟, for short) has deleted the penalty under Section 271(1)(c) of the Income Tax Act, 1961 ( Act‟, for short) after applying and following the decision of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mputed the same at a positive figure of ₹ 48.56 crores. However, the said figure was less than the book profit of ₹ 62.81 crores as declared and accordingly, the taxable income was computed under Section 115JB at a figure of ₹ 62.81 crores. Book profits were not enhanced. 5. The question raised in the present appeals is whether penalty can be imposed on the assessee, where additions are made under the normal provisions of the Act but actually the taxable income of the assessee is assessed not under the normal provisions but under Section 115JB and there is no addition as far as book profits is concerned. 6. The said aspect was examined by this Court in Nalwa Sons Investments Ltd. (supra). In the said case, after referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concealed income or even a minus figure. The court was of the opinion that the tax sought to be evaded will mean the tax chargeable not as if it were the total income. Once, we apply this rationale to Explanation 4 given by the Supreme Court, in the present case, it will be difficult to sustain the penalty proceedings. Reason is simple. No doubt, there was concealment but that had its repercussions only when the assessment was done under the normal procedure. The assessment as per the normal procedure was, however, not acted upon. On the contrary, it is the deemed income assessed under section 115JB of the Act which has become the basis of assessment as it was higher of the two. Tax is thus paid on the income assessed under section 115JB ..... X X X X Extracts X X X X X X X X Extracts X X X X
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