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2015 (7) TMI 441 - ITAT MUMBAI

2015 (7) TMI 441 - ITAT MUMBAI - TMI - Rectification of order passed - penalty levied u/s 158BFA(2) - Held that:- Tribunal has considered the decision rendered by the co-ordinate bench in the case of Ekta Exports (2015 (4) TMI 617 - ITAT MUMBAI). The Tribunal has noted down that the Explanation 1 to sec. 271(1)(c) provides that an assessee can escape from penalty levied u/s 271(1)(c) of the Act, if the bonafides of the assessee are proved. The co-ordinate bench of Tribunal, in the case of Ekta E .....

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e Explanation-1 given under sec. 271(1)(c) of the Act. Since the provisions of sec. 158BFA(2) does not contain any provision as that of Explanation 1 to sec. 271(1)(c) of the Act, the Tribunal took the view that the contention that "bona fides of the assessee" due to admission of substantial question of law by the Hon'ble High Court is not applicable in respect of penalty levied u/s 158BFA(2) of the Act. On appreciation of these legal points, the Tribunal did not follow the decision rendered by .....

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the Respondent : Shri Pavan Kumar Beerla ORDER Per B R Baskaran, Accountant Member The assessee has filed this miscellaneous application seeking rectification of the order dated 31.7.2014 passed in IT(SS)A No.16/Mum/2012. 2. The Ld Counsel appearing for the assessee submitted that the Tribunal, in the above said order, has confirmed the penalty levied u/s 158BFA(2) of the Act on the addition of ₹ 9.00 lakhs. He submitted that the Tribunal had earlier confirmed the said addition in the quan .....

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e case of M/s Ekta Exports (IT(SS)A No.27/Mum/2011 dated 24.8.2012), wherein the Co-ordinate bench of Tribunal had held that where a substantial question of law has been admitted by the Hon'ble High Court against the addition confirmed by the Tribunal, then no penalty can be imposed u/s 271(1)(c). The Ld A.R submitted that the Tribunal, in the assessee's case, has held that the decision in the case of Ekta Exports (supra) was rendered in the context of the provisions of sec. 271(1)(c) of .....

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f the Tribunal is binding on another co-ordinate bench of the Appellate Tribunal as held by the Hon'ble Supreme Court in the case of Sub Inspector Rooplal Vs. Ltd Governor (2000)(1 SCC 644 @ 654). He submitted that the Hon'ble Apex Court, in the above cited case, has held that if the subsequent bench of the Tribunal was of the opinion that the earlier view taken by the Co-ordinate bench of the same Tribunal was incorrect, then it ought to have referred the matter to a larger Bench so tha .....

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stion of debatable issue would be relevant only in respect of penalty levied u/s 271(1)(c) of the Act in view of the Explanation-1 given under sec. 271(1)(c) of the Act. Since the said explanation cannot be extended to the penalty levied u/s 158BFA(2) of the Act, the Tribunal has held that the contention that admission of substantial question of law by the Hon'ble High Court would make the issue debatable shall not apply to the penalty levied u/s 158BFA(2) of the Act. Accordingly, the Ld D.R .....

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assessee can escape from penalty levied u/s 271(1)(c) of the Act, if the bonafides of the assessee are proved. The co-ordinate bench of Tribunal, in the case of Ekta Exports (supra), had followed the decision rendered in the case of Nayan Builders and Developers Pvt Ltd Vs. ITO (ITA No.2379/Mum/2009 dated 18-03-2011), wherein it was held that the admission of substantial question of law by the Hon'ble High Court lends credence to the bona fides of the assessee. 6. This bench of the Tribunal .....

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