TMI Blog2013 (7) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... by the High Court - held that the CIT (A) has erred in cancelling the penalty imposed u/s 271(1)(c) on the only issue that since the appeal of the assessee in the quantum case has been admitted the issue is debatable one, so as to delete the penalty under section 271(1)(c) – order of CIT set aside – appeal decided in favour of revenue. - ITA No.1843/Ahd/2010 - - - Dated:- 12-7-2013 - Shri G. C. Gupta And Anil Chaturvedi,JJ. For the Petitioner : Shri Subhash Bains, CIT-DR For the Respondent : Shri Dhinal Shah ORDER Per G. C. Gupta, Vice-President: This appeal by the Revenue for the assessment year 2005-2006, is directed against the order of the CIT(A)-XIV, Ahmedabad dated 30-3-2010. 2. The grounds of the appeal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 271(1)(c) of the Act was not warranted as the issue being debatable, and more than one view was possible. He submitted that the Hon'ble Jurisdictional High Court in Their order dated 15.11.2011 in Tax Appeal of 606 of 2010 in CIT Vs. Prakash S. Vyas has held that mere admission of an appeal by the High Court cannot without there being anything further, be an indication that the issue is debatable one so as to delete the penalty under section 271(1)(c) of the Act even if there are independent grounds and reasons to believe that the assessee's case would fall under the mischief envisaged in the said clause (c) of sub-section (1) of section 271(1)(c) of the Act. He submitted that in view of the pronouncement of the Hon'ble jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one issue and other issues raised by the assessee in appeal were not adjudicated by the CIT(A). We find that a bare reading of operative part of the appellate order of the CIT(A) makes it clear that he has not passed any speaking order on all the contentions raised by the assessee before him. He has not adjudicated the issue of penalty on merits by observing that the matter is subjudice and is before the Hon'ble High Court. He has further directed the AO that if after receipt of Hon'ble Gujarat High Court's judgment in the case of appellant is satisfied or as per direction if any contained therein, he can take recourse of section 275(1A) of the Act accordingly. He has further recorded that the merits of the case can therefore be deliberate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elled on the ground that the claim of appellant u/s. 80IA read with sec. 801A(5) of the Act has given rise to a substantial question of law. it canot be treated to be frivolous or malafide so as to attract levy of penalty u/s. 271(1)(c) of the Act. The orders of appellate tribunal are binding in nature and the same are having different facts altogether than that of Hon'ble Supreme Court in the case of Dharmendra Textile (supra). Further the cancellation of penalty is not on merit since the matter is subjudice and before the Hon'ble High court. The A.O. if after receipt of Hon'ble Gujarat High Court's judgement in the case of appellant is satisfied or as per direction if any contained therein, he can take recourse of section 275(lA) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal by the High Court only indicates the Court's opinion that the issue presented before it required further consideration. It is an indication of the opinion of the High Court that there is a prima facie case made out and questions are required to be decided after admission. Mere admission of an appeal by the High Court cannot without there being anything further, be an indication that the issue is debatable one so as to delete the penalty under Section 271(1)(c) of the Act even if there are independent grounds and reasons to believe that the assessee's case would fall under the mischief envisaged in the said clause (c) of subsection (1) 271 of the Act. In other words, unless there is any indication in the order of admission passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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