2016 (8) TMI 567

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.... the assessee was partly allowed. 2. At the time of admitting this Appeal, following question of law was framed:- "Whether on the facts and in the circumstances of the case and in law the Hon'ble ITAT has erred in setting aside the order of the Authorities below and directed the A.O. to levy penalty U/s. 271(1)(c) on tax on total assessed income i.e. Rs. 3,28,357/-, even though the total concealed income of the assessee is amount to Rs. 61,03,790/- in view of the amendment brought by the Finance Act 2002 w.e.f. 01.04.2003?" 3. Mr.Mehta, learned counsel for the appellant submitted that the Tribunal has committed an error while passing the impugned order by reversing the finding of the CIT (A). He has taken us through Explanation....

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....mitted that while considering the question of penalty, the Assessing Officer has held that only with a view to claim benefit under Section 80 HHC of the Act, claim was made by the assessee. He further submitted that since there was no export, claim of benefit under Section 80 HHC of the Act was disallowed. He submitted that in view of this, penalty ought to have been imposed. In view of these submissions, he prayed to allow present appeal by setting aside the impugned order. 4. On the other hand, Mr.B.S.Soparkar, learned advocate for the respondent submitted that the Tribunal has not committed any error while passing the impugned order. He has relied upon the decision of the Apex Court in the case of CIT v. Gold Coin Health Food Pvt. Ltd....

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....returned, after assessment becomes positive income but also in a case where addition of concealed income reduces the returned loss and finally the assessed income is also a loss or a minus figure. Therefore, even during the period between 1.4.1976 to 1.4.2003 the position was that the penalty was leviable even in a case where addition of concealed income reduces the returned loss." 4.1 He submitted that in view of above observations, Tribunal has not committed any error while passing the impugned order. 5. We have heard both the learned counsel and perused the record. We have also gone through the judgment cited before us by Mr.Soparkar. Explanation-4 to Section 271 (1) (c) of the Act was never the basis for passing the impugned order....