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2017 (2) TMI 35 - BOMBAY HIGH COURT

2017 (2) TMI 35 - BOMBAY HIGH COURT - TMI - Imposition of penalty under Section 271(1)(c) - Held that:- The grounds that were highlighted before the Tribunal pertain to the confirmation of levy of penalty by the Commissioner of Income Tax (Appeals). The error in that confirmation was highlighted by the assessee's representative and during the course of his arguments, the assessee's representative referred to the Tribunals views on the merits and in quantum proceedings. That is how he would suppo .....

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under that particular statutory provision are satisfied or not, was the real issue involved. That is evidently a mixed issue. We do not see, in light of the factual findings rendered by the Tribunal, that any substantial question of law arises for determination and consideration in these Appeals. - We must see that the approach of the Tribunal in deleting penalty. On the date of that exercise undertaken, and to delete the penalty, the Tribunal had before it, its factual findings in quantum .....

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ue challenge the order passed by the Income Tax Appellate Tribunal, Mumbai Bench on 22.04.2013. 2. There are three assessment years which are involved; 2001-2002, 2002-2003 and 2004-2005. 3. The respondent-assessee challenged before the Tribunal the orders of the First Appellate Authority dated 16.03.2012. That order was a common order for three assessment years, and therefore, three Income Tax Appeals before the Tribunal were preferred. 4. Ground No.1 for all the years was the same. The grounds .....

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levied penalty on the basis of income tax including surcharge. However, when the argument commenced before the Tribunal, it is evident that the quantum matters were decided by the Tribunal on 17th April 2013 in three Income Tax Appeals, details of which are provided by the assessee's representative. The concealment penalty was therefore, the issue which was raised. The details of this concealment penalty are stated in paragraph 3 of the impugned order and from paragraph 3.1, the Tribunal re .....

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t was that the no quantum addition is surviving and penalty should be deleted. Then, in paragraph 3.3, another distinct ground of disallowance of interest for the assessment year 2002-2003 was noted. The Tribunal found that the Departmental Representative concedes that the transactions were treated as genuine. The Departmental Representative made reference to the Tribunal's earlier order to contend that though the transactions were treated as genuine, the Tribunal has not specified that whet .....

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the aforementioned order of the Tribunal it is almost clear that the share transactions entered into by the assessee are treated as genuine. The outcome of which will be the deletion of these additions. However, keeping in mind the apprehension of the revenue, we consider it just and proper to direct the AO to levy penalty on these additions only to the extent they survive after giving effect to the aforementioned order of the Tribunal dated 17/04/2013, the relevant portions of the order of Tri .....

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these Appeals should be admitted. 8. Mr. Joshi, however, submits that in the present Appeals, if ground nos. 1 and 2, as noted in the Tribunal's impugned order, are considered, they pertain only to levying of penalty under Section 271(1)(c) of the Income Tax Act. In that regard, Mr. Joshi would rely upon an order passed on 8th July 2014 in Income Tax Appeal No. 415 of 2012 (The Commissioner of Income Tax7 vs. M/s Nayan Builders and Developers). Relying upon this order, he would submit that .....

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