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Issues:
- Appeal against CIT (Appeals) order allowing appeal against penalties under s. 271(1)(c) for asst. yrs. 1975-76 and 1976-77. Analysis: 1. The case involved two appeals by the ITO against the CIT (Appeals) order allowing the assessee's appeal against penalties under s. 271(1)(c) for the assessment years 1975-76 and 1976-77. The appeals were disposed of by a common order. 2. The records revealed that a group of individuals entered into a partnership to develop a property in Bombay. Initially assessed as a firm, from the assessment year 1967-68 onwards, they were assessed as an association of persons due to the individual nature of their income shares. The issue arose when the ITO disallowed a deduction claimed by the association for municipal taxes collected from tenants. This led to the initiation of penalty proceedings under s. 271(1)(c) by the ITO. 3. The assessee's explanation for not including the extra taxes collected in the rent receivable was deemed unsatisfactory by the ITO, who imposed penalties for both years. However, the CIT (Appeals) held that as per s. 26, when co-owners' shares are definite, they cannot be assessed as an association of persons. Therefore, the CIT (Appeals) concluded that the penalties were not justified as the association had no assessable income under the law. 4. The ITO challenged the CIT (Appeals) order, arguing that the association did have assessable income and hence penalties under s. 271(1)(c) were applicable. The CIT (Appeals) had referred to the provisions of s. 26 and emphasized that the association's income was not subject to tax. 5. The legal representatives presented arguments regarding the association's tax liability and the applicability of penalties. They contended that the CIT (Appeals) did not adequately consider the factual submissions made by the assessee. The legal representative highlighted that the association's filing of a return did not imply concealment of income, especially when the association was not required to file a return due to s. 26 provisions. 6. The assessee's counsel argued that as per s. 26, the association was not liable to be assessed, and any misstatement in the return, if at all, should not attract penalties. It was emphasized that the association did not conceal any income and that the CIT (Appeals) decision should stand. However, if the decision went against the assessee, the matter should be remanded to the CIT (Appeals) for a proper decision on the merits. 7. The Tribunal found merit in the argument that since the association was not taxable as such, it had no obligation to file a return of income. Therefore, any misstatement in the return, which would have attracted penalties for other assesses, should be disregarded. The Tribunal referred to a similar case from the Bombay High Court to support this interpretation. 8. Ultimately, the Tribunal accepted the argument that assuming there was a concealment by the association, the lack of a tax liability to file a return meant that any consequences, including penalties, were inapplicable. Consequently, the appeals by the ITO were dismissed based on this reasoning.
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