TMI Blog2013 (6) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Brief facts are that the assessee filed return declaring Nil income. The assessment was completed under section 143(3) on 18.03.2003. Later, an order under section 154 was passed allowing carry forward business loss, unabsorbed depreciation and capital loss. Subsequently, the assessment was reopened under section 147 and completed the reassessment on 31.12.2007 under section 143(3) read with section 147 disallowing set off of carry forward losses relating to amalgamating company namely TTK Biomed Limited. The assessee went on appeal against such disallowance and the Commissioner of Income Tax (Appeals) by order dated 25.11.2008 allowed set off of carry forward losses to be adjusted in the assessment year 2000-01. However, the Tribunal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the Hon ble High Court had in fact admitted the appeal filed by the assessee against the order of this Tribunal in restoring the order of the Assessing Officer in disallowing the claim for set off of business and depreciation losses relating to amalgamating company namely TTK Biomed Ltd. The counsel for the assessee referring to page 163 of the paper book submits that the High Court had admitted the appeal filed by the assessee as there is a substantial question of law involved regarding issue of set off of carry forward losses in respect of TTK Biomed Ltd. He submits that the High Court admitted the assessee s appeal on 11.07.2011 and the appeal is pending before the High Court in respect of quantum disallowance. The counsel further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by claiming carry forward and set off of business losses and depreciation relating to amalgamating company namely TTK Biomed Ltd., the assessee has furnished inaccurate particulars of its income and therefore, it is liable for levy of penalty. On appeal, the Commissioner of Income Tax (Appeals) relying on the decision of the Hon ble Supreme Court in the case of CIT Vs. Reliance Petroproducts Pvt. Ltd. [322 ITR 158 (SC)], deleted the penalty holding that merely because certain additions have been made by disallowing the claim of the appellant in the assessment order, it does not mean that penalty would automatically become leviable. The Mumbai Bench of the Tribunal in the case of M/s. Nayan Builders Developers Pvt.Ltd., Vs. ITO(supra) had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court to be involving a substantial question of law, in our considered opinion, the penalty is not exigible under this section. We, therefore, order for the deletion of penalty. 6. In the case on hand, the Hon ble High Court on 11.7.2011admitted the appeal filed by the assessee in respect of disallowance of claim made for set off of business and depreciation losses relating to amalgamating company namely TTK Biomed Ltd. as there was a substantial question of law involved. Therefore, respectfully following the order of the Mumbai Bench of the Tribunal (supra) we hold that the penalty is not exigible, as the appeal was admitted by the High Court in the present case. Even otherwise, the penalty is also not leviable in the view of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
