2013 (6) TMI 943

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....he following substantial question of law for our consideration : "Whether on the facts and circumstances of the case, the Appellate Tribunal was right in deleting the penalty of Rs. 2,82,50,000/- levied u/s. 271(1)(c) of the Act by holding that even after the disallowances, tax finality required to be paid as per section 115JB of the Act, remains the same, and that the claim made was admitted by the assessee as a bona fide mistake, disregarding the fact that the mistake was admitted only on pointing out the same during the assessment proceedings and also disregarding the notional tax effect involved in the case ?" 2. A short substantial question raised in the present Tax Appeal pertains to levying of penalty under Section 271(1)....

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....lity of the assessee. It was held that even after such disallowance, tax finally required to be paid, as per Section 115 JB of the Act, would remain the same. The Tribunal, therefore, held that it cannot be stated that the assessee evaded tax. The third ground on which the Tribunal deleted the penalty was that in response to the notice issued, the assessee had tendered his explanation to the Assessing Officer, which was not found to be false. There was nothing to show that such explanation was not bona fide and that all facts relating to computational income were not discussed by the assessee. The Tribunal observed that no such case is made out by the Assessing Officer or by the CIT(Appeals). When in facts Tribunal found that the assessee, ....

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....f non-furnishing of material particulars of income. 5. The Tribunal adopted these findings and moreover, relying upon the decision of this Court in the case of Vijay Mistry Construction (supra) and Rajakamal Builders (P.) Ltd. (supra), it further held that the assessed income of the assessee under regular provision was nil even after making additions on both the counts i.e. in respect of depreciation as well as the capital loss. The Tribunal, therefore, was of the opinion that even after making some disallowance, the tax required to be paid as per Section 115JB remained the same and, therefore, it was not possible to hold that, the assessee evaded the tax. Thus, on the ground of tax neutrality, relying also on the judgment of the Delhi H....