TaxTMI 
TaxTMI 
2014 (7) TMI 98
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.... Assessing Officer confirmed by the Commissioner of Income Tax (Appeals), the revenue has preferred the present Tax Appeal raising the following substantial questions of law; (i) Whether in the facts and circumstances of the case and in law, the ITAT is justified in not upholding the penalty under Section 271(1)(c) of the Act imposed by the Assessing Officer and upheld by the CIT(A), without appreciating that the assessee had failed to offer any satisfactory explanation to show as to why the impugned income was not disclosed by him in his return and not offered for tax even though the said income was undoubtedly liable for tax under Section 45(3) of the Act and, therefore, the assessee had failed to rebut the presumption in Explanation 1....
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....ile issuing notice for final disposal, the Division Bench passed the following order on 21/04/2014. "Revenue has challenged the judgment of the Income Tax Appellate Tribunal ("Tribunal" for short) dated 5th July, 2013 deleting the penalty imposed by the Assessing Officer and confirmed by the CIT(A). In doing so, the Tribunal observed as under; "...This is the settled position of law that the penalty under Section 271(1)(c) of the Income Tax Act, 1961 is impossible in respect of any concealment of income or furnishing of inaccurate particulars of income by the assessee. When for the addition made by the A.O. which is confirmed by the Tribunal, a substantial question of law is admitted by Hon'ble Gujarat High Court, it has to be accepte....
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...., the issue is not free from debate and consequently the tribunal has set aside the penalty. It is submitted that the aforesaid is not accepted by the Division Bench of this Court in the case of Commissioner of Income Tax-I Vs. Prakash S Vyas rendered in Tax Appeal No.606/2010. It is submitted that therefore the impugned order passed by the tribunal is required to be quashed and set aside and the matter is required to be remanded to the tribunal to decide the appeal afresh in accordance with law and on its own merits. 5. Shri Soparkar, learned advocate appearing on behalf of the respondent is not in a position to dispute the above and is not disputing that as such the aforesaid issue/questions are squarely covered by the decision of the ....
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....d to be debatable? 8. Identical question came to be considered by the Division Bench of this Court in Tax Appeal No.606/23010 and in paragraph 10 to 13 the Division Bench of this Court has observed as under and has quashed and set aside the order of the tribunal deleting the penalty on the aforesaid ground and has remanded the matter to the tribunal to consider the appeal afresh in accordance with law and on its own merits. "10. Having, thus, heard learned counsel for the parties, we reiterate that the sole ground on which the Tribunal deleted the penalty was that with respect to the quantum additions, the assessee had approached the High Court and High Court had admitted the appeal framing substantial questions of law for considerati....
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....rom the order of Court even if so expressed either explicitly or in implied terms. This is also not to suggest that in no case, admission of a Tax Appeal would be a relevant factor for the purpose of deciding validity of a penalty order. This is only to put the record straight insofar as the opinion that the Tribunal as expressed in the present impugned order viz. that upon mere admission of a Tax Appeal on quantum additions, is an indication that the issue is debatable one and that therefore, penalty should automatically be deleted without any further reasons or grounds emerging from the record. 13. This is precisely what has been done by the Tribunal in the present case. Order of the Tribunal, therefore, cannot be sustained. Question f....