TaxTMI 
TaxTMI 
2015 (11) TMI 574
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....ctive ground of appeal is as under : "The notice issued under section 271(1)(c) of the Income-tax Act, 1961 ('Act') and the penalty order passed under the said section imposing penalty of Rs. 62,41,758 is bad in law and liable to be quashed." 3. Learned counsel for the assessee submitted that the assessee has carried forward losses and unabsorbed depreciation prior to the financial year 2001-02. He submitted that during the period relevant to assessment year 2002-03, there was a change in shareholding of the assessee-company. He submitted that the assessee has set off business income of Rs. 1.85 crores during the relevant assessment year 2004-05 and had set off the brought forward losses to that extent. The assessee, during th....
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.... the assessee with the decision of the hon'ble Delhi High Court in the case of Ms. Madhushree Gupta v. Union of India [2009] 317 ITR 107 (Delhi), 155. He submitted that the charge in this case was that of furnishing of inaccurate particulars of income and the penalty was levied by invoking Explanation 1 to section 271(1)(c) of the Act, which is a deeming provision for concealment of income and not for furnishing of any inaccurate particulars of income. He submitted that the amount in question was neither added nor disallowed in the computation of income. Learned counsel for the assessee submitted that the issue was debatable and, therefore, the assessee could definitely make a claim for set off of the business income against the brought....
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....e relied on a series of decisions in support of the case of the Revenue as under : (1) CIT v. Smt. Santosh Sharma [2009] 311 ITR 353 (Delhi) ; (2) CIT v. Pearey Lal and Sons (EP) Ltd. [2009] 308 ITR 438 (P&H) ; (3) CIT v. Gold Coin Health Food P. Ltd. [2008] 304 ITR 308 (SC) ; (4) CIT v. N. Nandakumar, Aji Industries [2005] 279 ITR 80 (Kerala) ; (5) CIT v. Sangmeshwara Associates [2012] 345 ITR 396 (Karn) ; (6) CIT v. T. Ashok Pai [2007] 292 ITR 5 (Karn) On appeal reversed in [2007] 292 ITR 11 (SC). (7) CIT v. Dharamshi B Shah [2014] 366 ITR 140 (Guj) ; (8) CIT v. Harparshad and Company Ltd. [2010] 328 ITR 53 (Delhi) ; (9) CIT v. Zoom Communication P. Ltd. [2010] 327 ITR 510 (Delhi) ; (10) Asst. CIT v. Di....
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....as based on the legal opinion received by the assessee from the firm M/s. Bansi S. Mehta and Co., Chartered Accountants, Mumbai dated June 15, 2001. We find that the assessee was alert and, that is why, it has sought legal opinion from well-established firm of consultants at Mumbai. M/s. Bansi S. Mehta and Co. has given the opinion with certain qualifications and with caution that it may result in successive appeals, etc., but that does not mean that the assessee could not put a claim of deduction before the Assessing Officer. We have to see the overall conduct of the assessee. It is not the law that wherever there is an addition or disallowance made by the Revenue, the assessee should be held liable for penalty under section 271(1)(c) of t....
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....e from any source or, in some circumstances, better wisdom may prevail upon the assessee. The plethora of case law cited by the learned Departmental representative could be applied to the case of the assessee only in the peculiar facts and circumstances of the case of an assessee. The assessee has filed an explanation in this case for claiming the set off of business income against the brought forward business losses, based on legal advice received from established consultants and has withdrawn its claim before being cornered by the Revenue and in view of the fact that the claim of set off of business income was allowed by the Assessing Officer himself under a different head of unabsorbed depreciation brought forward from the earlier years ....