TMI Blog2016 (4) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 260A of the Act, which has been admitted and substantial question of law frames, that itself shows that the issue is debatable and for that reason the penalty under section 271(1)(c) of the Act cannot be levied. We are of the view that Hon'ble Jurisdictional High Court has clearly laid down the principle that once Hon'ble High Court admits the substantial question of law in quantum appeal of the assessee, that itself shows that the issue is debatable and for that reason penalty u/s. 271(1)(c) of the Act cannot be levied. - Decided in favour of assessee. - ITA No. 1316/Mum/2014 - - - Dated:- 7-4-2016 - R. C. Sharma, AM And Mahavir Singh, JM For the Appellant : Shri H P Mahajani For the Respondent : Shri Sanjeev Jain OR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of 35% ignoring the fact that the impugned long term capital loss on sale of R D asset was set off/would be set off only against long term capital gains having tax liability @ 20% and not 35%. In any event therefore, the amount of penalty levied by learned Assessing Officer needs be reduced pro tanto.' 3. At the outset, the ld. Counsel for the assessee stated that the quantum appeal u/s. 260A of the Act has been admitted by the Hon'ble Bombay High Court in ITA No. 1289 of 2012 dated 08.3.2013, wherein the issue of disallowance of capital loss, pertaining to receipt arising out of sale of research and development of capital assets, has been admitted and reframed substantial question of law vide order dated 08.3.2013, as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear in question as well. The Commissioner as also the Tribunal found that there is no concealment of particulars of income nor furnishing of inaccurate particulars of income for the assessment year. 3] The argument of Mr. Vimal Gupta is that when such was the stand of the department, the Assessee approached the Settlement Commission during some assessment years and accepted the order of the Settlement Commission. However, in the present assessment year, it raises the very claim and, therefore, the Commissioner's findings could not have been endorsed by the Tribunal and this is a substantial question of law particularly when it failed to assign independent reasons of its own. 4] We do not find any merit in this contention bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion that no question of law arises in the present case. 4. On the other hand, the Ld. CIT, DR Shri Sanjeev Jain argued and he relied on the decision of Hon'ble Delhi High Court in the case of CIT Vs. Splender Construction 352 ITR 588 (Del.). According to him, this issue where quantum proceedings have been considered by Hon'ble High Court and substantial question of law has been framed, it itself does not give rise to the facts that the issue is debatable. He referred to para 10 of Hon'ble High Court's judgment, which reads as under: 10. The issue was not debatable, as held by the Tribunal in the impugned order. No doubt, appeal was admitted. However, the Tribunal has glossed over a very important and fundament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions, the assessee had approached the High Court and High Court had admitted the appeal framing substantial questions of law for consideration. In view of the Tribunal, this would indicate that the issue was debatable and that therefore, no penalty under Section 271(1)(c) could be imposed. 11. We are of the opinion that the Tribunal erred in deleting the penalty on this sole ground. Admission of a Tax Appeal by the High Court, in majority cases, is ex- parte and without recording even prima facie reasons. Whether ex-parte or after by-parte hearing, unless some other intention clearly emerges from the order itself, admission of a Tax Appeal by the High Court only indicates the Court's opinion that the issue presented before it re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds emerging from the record. 13. This is precisely what has been done by the Tribunal in the present case. Order of the Tribunal, therefore, cannot be sustained. Question framed is answered in favour of the Revenue and against the assessee. Order of the Tribunal is reversed. Since apparently the assessee had raised other contentions also in support of the appeal before the Tribunal, the proceedings are remanded before the Tribunal for fresh consideration and disposal in accordance with law. Tax Appeal is disposed of accordingly. In view of these case laws the Ld. CIT, DR stated that the penalty imposed by AO be not deleted solely on the basis that the assessee is able to demonstrate that there is substantial question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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