TMI Blog1979 (8) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... l referring for our answer the following question of law : " Whether, on the facts and in the circumstances of the case, the Tribunal was justified in cancelling the penalty levied u/s. 271(1)(a) on the ground that the firm in which the assessee is a partner has already been penalised for identical default and the default committed by the assessee is coextensive with the default committed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn of income unless such shares of income could be ascertained from the firms. No doubt, the assessee, as a partner of the firm, might also be partly responsible for the delay on the part of the firm in completing its accounts and filing its returns. However, for such delay, the firm itself has been subjected to penalty under section 271(1)(a) and, under the provisions of section 271(2) it has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re income from the firm. However, as that is not the position in the case before us, we do not wish to express any opinion thereon. On the basis of the facts and circumstances obtaining in the case before us, we are of the view that the imposition of the impugned penalty was not justified. We would accordingly cancel the penalty and allow this appeal. " Although the order of the Tribunal is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impose penalty. If it is found that there is only a technical or venial breach of the law or that it would be unjust to impose penalty, the authorities may exercise their discretion in favour of the assessee by not imposing penalty. The learned counsel for the Department relied upon the case of Amritlal Somabhai v. CIT [1979] 116 ITR 833 (MP), in which it was held by this court that a firm and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al did not act in accordance with law or exceeded its jurisdiction. In this connection, we may refer to a recent decision of this court in Addl. CIT v. Chokhelal Sharda Prasad (Miscellaneous Civil Case No. 221 of 1973, decided on 20th August, 1979) Our answer to the question referred is as follows : The Tribunal acted within its lawful discretion in cancelling the penalty. There shall be no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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