TaxTMI 
TaxTMI 
2019 (3) TMI 1541
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....1/Del/2008) (hereinafter referred to as the Revenue) by filing the present appeal sought to set aside the impugned order dated 26.11.2007 passed by the Commissioner of Income-tax (Appeals)- XXIX, New Delhi , affirming the penalty order dated 18.01.2006 passed u/s 271(1)(c) of the Income Tax Act, 1961 (for short 'the Act'), qua the A.Ys. 1997-98, 1998-99, 1999-2000, 2000-01 & 2001-02 respectively on the identical grounds inter alia that :- "1. On the facts and circumstances of the case, Ld. CIT(A) has erred in cancelling the penalty levied by the Assessing Officer u/s 271(1)(c) of the I.T.Act, 1961 amount to Rs. 4,20,46,690/- , Rs. 3,39,09,035/- , 4,06,60,146/-, 4,71,90,528/-, & 14,60,96,736/- for A.Y. 1997-98, 1998-99, 1999-2000, 2000-01 ....
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....CIT(A) for supply of software by treating it not in the nature of 'Royalty'. Consequently penalty proceedings have been initiated and penalty of Rs. 4,20,46,690/-, Rs. 3,39,09,035/-, Rs. 4,06,60,146/-, Rs. 4,71,90,528/- & 14,60,96,736/- u/s. 271(1)(c) of the Act for the A.Ys. 1997-98, 1998-99, 1999-2000, 2000-01 & 2001-02 @ 100% has been levied. 4. Assessee carried the matter before Ld. CIT(A) who has deleted the penalty levied by AO by accepting the appeals of the assessee. Feeling aggrieved the revenue has come up before the Tribunal by way of filing the present appeals. 5. We have heard the ld. DR for the revenue and gone through the order passed by the lower revenue authorities. 6. Undisputedly special bench consecuted by the Tribuna....
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....hat income from supply of software is not taxable as royalty and these findings have been confirmed by Hon'ble High Court, a penalty levied on the assessee is not sustainable in the eyes of law. 8. Hon'ble Jurisdictional High Court in case cited as Commissioner of Income Tax Vs. Nokia India Pvt. Ltd. [2012] 343 ITR 434 (Delhi) held that when the quantum proceedings had been decided in favour of the assessee penalty levied u/s 271(1)(c) is not sustainable. So, we are of the considered view that when very basis of levying the penalty i.e. addition made in the quantum proceedings, have been deleted / decided in favour of the assessee by the Tribunal as well as Hon'ble High Court the penalty levied u/s 271(1)(c) is not sustainable having been ....
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.... 2000-01 & 2001-02 is mirror image of A.Y. 1997-98 & 1998-99 relied upon by the revenue authorities and same have also been decided in favour of the assessee in the light of decision rendered by Special Bench in assessee's own case for A.Y. 1997-98 & 1998- 98 dated 05.06.2018 reported as (2018) 65 ITR (T) 23 (Delhi- Trib.) (SB), Order dated 22.06.2005 cited as [2005] 95 ITD 269 (Delhi) (SB) 12. Hon'ble Jurisdictional High Court in case cited as (2012) 349 ITR 477 (Delhi) Commissioner of Income Tax Vs. Pradeep Agencies Joint Venture that confirmed the findings recorded by Tribunal that where two views were possible and matter was referred to special bench penalty has been rightly deleted by returning following findings : "8. We have also ....