TMI Blog2010 (12) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... - ince the issue has been remitted to the files of the Ld. Commissioner of Income Tax (Appeals), in our considered opinion, adjudication of penalty at our level is not possible without adjudication of the same on merits by the Ld. Commissioner of Income Tax (Appeals) pursuant to the remand by the ITAT - appeal filed by the Revenue is partly allowed for statistical purposes - ITA No. 1438/Del/2010 - - - Dated:- 6-12-2010 - R.P. Tolani, Shamim Yahya, JJ. H.P. Aggarwal, CA for the Appellant R.P. Singh, Sr. DR, for the Respondent ORDER Shamim Yahya: This appeal by the Revenue is directed against the order of the Ld. Commissioner of Income Tax (Appeals) dated 4.1.2010 pertaining to assessment year 2004-05. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25/- Addition made by the Assessing Officer under section 68 Deleted the addition Confirmed the order of C.I.T.(A) 3.1 Assessing Officer levied penalty on all the above additions. 4. Ld. Commissioner of Income Tax (Appeals) upon assessee's appeal deleted the major part of the penalty as under:- (i) Software expenses incurred by the assessee. (ii) Losses on account of foreign exchange fluctuation. (iii) Penalty on addition of Rs.13,76,262/- on interest on loans granted to the directors was deleted and penalty on the balance amount of Rs.3,70,068/- was confirmed. (iv) Unsecured loans obtained by the assessee. 5. Against this order Revenue is in appeal before us. 6. We have heard both the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In fact there is no concealment of income with the intent of evasion of taxes if the issue is examined in its totality. The imposing of penalty on this account is, therefore, directed to be deleted." 7. We have heard both the counsel and perused the records. We find that amount involved pertaining to subscription for renewal of Microsoft licences. Total amount incurred was Rs.110240/- out of which Rs.92,750/- was found to be attributable to the next year. Hence the amount was disallowed. We find that disallowance of this amount cannot lead to levy of penalty u/s 271(1)(c). Section 271(1)(c) postulates levy of penalty for concealment of income or furnishing of inaccurate particulars. Assessee has furnished all the particulars and from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation is the result of a quasi-criminal proceedings, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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