TMI Blog2013 (2) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... <![endif]--><!--[if gte mso 10]> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin-top:0cm; mso-para-margin-right:0cm; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0cm; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-fareast-language:EN-US;} <![endif]--> SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARMA, A.M. For the Appellant : Shri Pankaj Shah and Shri G. J. Shah, CAs For the Respondent : Shri R. A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble High Court as it automatically becomes debatable. The ld. Authorized Representative further contended that no satisfaction has been recorded in the assessment order by the Assessing Officer, therefore, no penalty can be levied, in view of the decision of Indore Bench in the case of Sarita Agarwal, 17 ITJ 193, wherein it was held that no penalty is leviable u/s 271(1)(c), when the Assessing Officer has not recorded satisfaction that there was concealment or inaccurate particulars of income in assessment order. Our attention was also invited to recent decision of Delhi Bench of I.T.A.T. dated 13th July, 2012, in the case of Global Green Company Limited vs. D. CIT, (I.T.A.No.1390/Del/11), where following Delhi High Court decision in the case of Madhu Shree Gupta, 317 ITR 107 (Del), it was held that Section 271(1)(c) penalty not valid if satisfaction not recorded in the assessment order (After considering the insertion of Explanation 1B to Section 271(1)(c) vide Finance Act 2008). As per ld. Authorized Representative, since in the assessee s case the Assessing Officer has not recorded his satisfaction in the assessment order the initiation of penalty is not valid and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... called for. 6. With regard to the legal issue to the effect that no penalty can be imposed when there are two views, the submission of the ld. Authorized Representative Mr.Shah was as under :- When an appeal is admitted as substantial question of law, there has to be two views. When two views are there penalty cannot be levied. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. Santosh Hazari v. Purshottam Tiwari ( 3 SCC 179) (Full Bench) S. C. A question of law on which there is great divergence of judicial opinion will be substantial question of law. (Para 6)- Rimmalapudi S. Rao ( AIR 1951 Mad 969) (Mad H.C.). if there is room for reasonable doubt or difference of opinion on the question, then it would be a substantial question of law. (Para 11) Rimmalapudi S. Rao ( AIR 1951 Mad 969) (Mad H.C.). In Sir Chunilal a case, the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao vs. Noony Veeraju (Sir Chunilal case, SCR p. 557) AIR 1951 Mad 969, (1951) When a question of law is fairly arguable, where there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made on account of cash credit. In terms of decision of Ahmedabad Bench in the case of Rupam Mercantile, 91 ITD 1273, where a plea for claim which is held by the High Court could have given rise to a substantial question of law, cannot be treated to be frivolous or mala fide so as to attract levy of penalty u/s 271(1)(c) of the Income-tax Act, 1961. Similar view was taken by the Hon'ble Bombay High Court in the case of Nayan Builders and Developers Private Limited, wherein it was held that when Hon'ble High Court admits substantial question of law on an addition, it become apparent that addition is certainly debatable and under such circumstances penalty cannot be levied u/s 271(1)(c) of the Income-tax Act, 1961. The admission of substantial question of law leads credence to the bona fides of the assessee. By following these decisions, similar view has been taken by the I.T.A.T., Indore Bench in the case of Kusum Oswal I.T(SS).A.No. 101/Ind/2009 dated 20th April, 2011. Respectfully following the decision of Coordinate Bench as narrated above, we do not find any substance in action of Assessing Officer for levy of penalty in respect of addition for which substantial question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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