TMI Blog2017 (6) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... same is directed to be cancelled. - Decided against revenue - ITA No. 749/Kol /2014 - - - Dated:- 7-6-2017 - Shri Aby.T Varkey, Judicial Member And Shri Waseem Ahmed, Accountant Member By Appellant : Shri Saurabh Kumar, ACIT, SR-DR By Respondent : Shri V.N. Dubey, Advocate ORDER Per Waseem Ahmed, Accountant Member:- This appeal by the Revenue is directed against the order of Commissioner of Income Tax (Appeals)-XII, Kolkata dated 20.01.2014. Assessment was framed by DCIT, Circle-12, Kolkata u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) vide his order dated 27.04.2012 for assessment year 2009-10. Shri Sauarabh Kumar, Ld. Departmental Representative represented on behalf of Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The ld. Counsel for the assessee submitted before us that there was no tax liability under normal provisions of law. Thus the addition made under the normal provisions of law cannot be subject matter of penalty where the taxes are paid under MAT provisions. The said provisions have been clarified by the CBDT in its circular No. 25/2015 dated 31.12.2015 which reads as under: Subject: Penalty U/S 271(1)(c) wherein additions/disallowances made under normal provisions of the Income Tax Act, 1961 but tax levied under MAT provisions u/s 115JB/115JC, for cases prior to A.Y. 2016-17-reg.- Section 115JB of the Act is a special provision for levy of Minimum Alternate Tax on Companies, inserted by Finance Act 2000 with effect from 1-4-2001. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, in view of the Delhi High Court judgment and substitution of Explanation 4 of section 271 of the Act with prospective effect, it is now a settled position that prior to 1/4/2016, where the income tax payable on the total income as computed under the normal provisions of the Act is less than the tax payable on the book profits u/s 115JB of the Act, then penalty under 271(l)(c) of the Act, is not attracted with reference to additions/disallowances made under normal provisions. It is further clarified that in cases prior to 1.4.2016, if any adjustment is made in the income computed for the purpose of MAT, then the levy of penalty u/s 271(1)(c) of the Act, will depend on the nature of adjustment. 6. The above settled position is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was thus assessed under Section 115JB and not under the normal provisions. It is in this context that we have to see and examine the application of Explanation 4. 25. Judgment in the case of Gold Coins (supra), obviously, does not deal with such a situation. What is held by the Supreme Court in that case is that even if in the income tax return filed by the assessee losses are shown, penalty can still be imposed in a case where on setting off the concealed income against any loss incurred by the assessee under other head of income or brought forward from earlier year, the total income is reduced to a figure lower than the concealed income or even a minus figure. The court was of the opinion that the tax sought to be evaded will mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred by the department. He relied on the order of Ld. CIT(A). On the contrary, the ld. DR relied on the order of Assessing Officer. 5. We have heard the contentions of both the parties and perused the material available on record. We have already observed that in the present case the income of the assessee was charged under the MAT provisions and there is no doubt in this regard. Thus, there is no question for levying the penalty u/s 271(1)(c) of the Act for the additions made under the normal provisions of law. In these circumstances, we are of the view that imposition of penalty cannot be sustained. The plea of the ld. Counsel for the assessee which is based on the decisions referred to in the earlier part of this order has to be ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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