TaxTMI 
TaxTMI 
2010 (4) TMI 750
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....s to be paid and not the fees calculated with reference to the assessed income. The relevant portion of the judgment at placitum 3 and 4 are reproduced below : "3. A look at the sub-section would make it abundantly clear that in the case an appeal is filed on or after 1-10-1998, the appeal must be accompanied by a fee of what has been provided in clauses (a), (b), (c) and (d) of the said sub-section. Clauses (a), (b) and (c) provides that fees as mentioned therein should be determined on the basis of total income of the assessee as mentioned in those clauses. Therefore, in the case of an appeal, where the total income of the assessee is ascertainable from the appeal itself, i.e., when the appellant is seeking to challenge the assessment of his total income, fees as mentioned in clauses (a), (b) and (c) would be required to be paid. Clause (d) of the sub-section deals with other appeals. Imposition of penalty under section 271 of the Income-tax Act, 1961, has no connection or bearing with the total income of the assessee. A person aggrieved by an order imposing penalty, if approaches the Tribunal by preferring an appeal, imposition of penalty, having no nexus with the total incom....
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....r lapse of about 10 months of filing of the return, when notice under section 143(2) had been issued to the assessee. Therefore, it was held that the assessee made herself liable for levy of penalty. Accordingly, minimum penalty of Rs. 28,082 was levied. The matter was agitated in appeal. The submission of the assessee before him was that the assessee had furnished complete details of long-term capital loss and short-term capital gains. Therefore, the case was one of bona fide mistake. Therefore, it was argued that the penalty levied by the Assessing Officer may be deleted. The ld. CIT(Appeals) did not accept this explanation more or loss on the reasons mentioned by the Assessing Officer. He relied heavily on the decision of Delhi Tribunal in the case of Naresh Kumar Verma v. Dy. CIT [2009] 29 SOT 511. The Hon'ble Tribunal considered the decision of the Apex Court in the case of Union of India v. Dharmendra Textile Processors [2008] 306 ITR 277/174 Taxman 571 and came to the conclusion that in that case the assessee had made himself liable for penalty for making a false claim under section 10B in respect of two sales which were inland sales and in respect of which no convertible fo....
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....07, a case dealing with delay in filing special leave petition. It was inter alia submitted that the delay occurred on account of ignorance of law on the part of the counsel of the assessee, a plea rejected by the High Court. It was held that it is a settled law that the mistake of counsel may in certain circumstances be taken into account in condoning the delay. However, there is no general proposition of law in this behalf. The question always is whether the mistake was bona fide or a devise to cover up the latches? Further, reliance was placed on the decision of the Supreme Court in the case of Dilip N. Shroff v. Jt. CIT [2007] 291 ITR 519/161 Taxman 218, in which it was inter alia held that the terms "concealment of income" and "furnishing inaccurate particulars of income" used in section 271(1)(c) inherently involve the concept of deliberate act on the part of the assessee. Mere omission or negligence would not constitute such a deliberate act, warranting the levy of the penalty. Reliance was also placed on the decision of the Supreme Court in the case of Union of India v. Rajasthan Spg. & Wvg. Mills [2009] 180 Taxman 609, in which the decision in the case of Dharmendra Textil....
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....im was a bona fide mistake. All facts regarding computation of the loss and the gains were furnished along with the return of income. Thus, it is neither a case of concealment of income nor furnishing inaccurate particulars of income. The case of the ld. DR is that the claim of adjustment was withdrawn in the course of hearing after lapse of about one year from the date of filing the return of income. The claim was patently incorrect in law. Therefore, the penalty is leviable. 4.1 In the case of Naresh Kumar Verma (supra), relied upon by the ld. CIT(Appeals), the assessee had furnished wrong facts about two sales in respect of which deduction was also claimed under section 10B. The ld. DR has not been able to point out towards any falsity in facts furnished by the assessee in respect of computation of the loss or the gain. Therefore, the facts of aforesaid case are distinguishable. 4.2 In the case of Dharmendra Textile Processors (supra), relied upon by the ld. CIT(Appeals) and the ld. DR, the finding of the court was that the question of levy of penalty has to be decided in terms of statutory language employed in the main provision and Explanations appended thereto. This cas....