TaxTMI 
TaxTMI 
2021 (11) TMI 575
X X X X Extracts X X X X
X X X X Extracts X X X X
....8 of the Income Tax Appellate Tribunal (for short 'Tribunal'), Cochin Bench, in I.T.A. No.320/Coch/2017 to the extent the order is against the assessee. The issues canvassed in the appeal relate to the return filed by the assessee for the Assessment Year 2010- 11. The substantial questions of law raised in the appeal are mixed questions of fact and law arising under Section 271(1)(c) of the Income Tax Act, 1961 (for short, 'the Act'). 4. The circumstances necessary for disposing of the appeal are in a limited sphere and are stated thus: The subject matter of the appeal relates to the penalty proceedings for the omission or commission of assessee in either disclosing the income or paying the tax for the Assessment Year 2010-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....- and 200% penalty on the tax sought to be evaded was levied. On appeal, filed by the assessee, before the Commissioner of Income Tax (Appeals), the Commissioner set aside the order of penalty in Annexure-C dated 09.03.2017. In the appeal filed by the Revenue before the Tribunal in I.T.A. No.320/Coch/2017, the Tribunal in-part set aside the order of the CIT (Appeals) and directed a minimum penalty of 100% under Section 271(1)(c) and prescribed the penalty payable by the assessee as Rs. 10,25,850/-. Hence, the appeal at the instance of the assessee. 5. The following substantial questions of law are framed for decision. " i. In the facts and circumstances of the case, ought not the Tribunal have held that there cannot be a levy of penalty ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the [Commissioner (Appeals)] or the Principal Commissioner or Commissioner in the course of any proceedings under this Act, is satisfied that any person- (a) .... (b) .... (c) has concealed the particulars of his income or furnished inaccurate particulars of such income, or (d) ..... he may direct that such person shall pay by way of penalty,-- (i) ...... (ii) ..... (iii) in the cases referred to in clause (c) or clause (d), in addition to tax, if any, payable by him, a sum which shall not be less than, but which shall not exceed three times, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or fringe benefits or the furnishing of inaccurate particulars of such income or fringe ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or on the tax evaded by the assessee. The Tribunal treated the penalty amount as Rs. 10,25,850/-. The plain meaning of the section leads to the conclusion that the criteria for determination of penalty is the tax sought to be evaded but not the total tax payable by the assessee. As already noticed from the computation statement in Annexure-A the total tax payable by the assessee is Rs. 10,25,850/-. The difference of tax is lesser than that which was found to have been evaded by the assessee. Therefore, the penalty shall be quantified or qualified by such figures. For the said purpose, we are persuaded not to remit the matter to any of the authorities. 8.2 From the details available in the record, we have heard the counsel on the quantum of....