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TMI Blog2005 (4) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... another company, namely, M/s Bhagwan Dass Agro Industries (P) Ltd., was merged with the assessee-company pursuant to an order passed by the Hon'ble Delhi High Court on 14th March, 2000. The said merger was made effective from 1st April, 2000. Since the assessee-company had already filed the petition for merger w.e.f. 1st April, 2000, it claimed the carry forward of business loss and long-term capital loss of the merging company, i.e., M/s Bhagwan Dass Agro Industries (P) Ltd., in its return of income for the year under consideration. The said return of income was filed by the assessee-company on 31st Oct., 2001, declaring a loss of Rs. 44,94,076 which was inclusive of the loss of Rs. 42,15,081 pertaining to the merging company, M/s Bhagwan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d no merits in the submission made on behalf of the assessee and keeping in view Expln. 4 to s. 271(1)(c), inserted subsequently, he confirmed the penalty imposed by the AO under s. 271(1)(c). Aggrieved by the same, the assessee-company is in appeal before the Tribunal. 3. We have heard the arguments of both the sides and also perused the relevant material on record. Before us, the learned counsel for the assessee has raised two legal contentions to challenge the penalty imposed by the AO under s. 271(1)(c) and confirmed by the learned CIT(A) besides factual merits. Firstly, he has contended that no satisfaction was recorded by the AO in his assessment order regarding the concealment of particulars of income by the assessee-company or furn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing penalty is a condition for the exercise of the jurisdiction. In the case of D.M. Manasvi vs. CIT, it was also held by their Lordships of the Supreme Court that s. 271(1) contemplates that the AO should have been satisfied in the course of assessment proceedings regarding matters mentioned in the various clauses of that sub-section and the satisfaction of the AO in the course of assessment proceedings regarding the concealment of income constitutes the basis or foundation in the proceedings for levy of penalty. Relying on this decision of the Hon'ble apex Court in the case of D.M. Manasvi, the Hon'ble Delhi High Court in the case of CIT vs. Ram Commercial Enterprise Ltd. has held that the satisfaction as to the assessee having concealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd further confirmed by the Hon'ble Supreme Court in its decision reported in (2001) 166 CTR (SC) 187 : (2001) 249 ITR 670 (SC). In this regard, the learned Departmental Representative has relied on the recent decision of Hon'ble Bombay High Court in the case of CIT vs. Chemiequip Ltd. (2003) 182 CTR (Bom) 144 in support of the Revenue's case and pointed out that the decision of Hon'ble Punjab & Haryana High Court in the case of Prithipal Singh & Co. has been distinguished by the Hon'ble Bombay High Court keeping in view Expln. 4 to s. 271(1)(c) inserted in the statute w.e.f. 1st April, 1976. We have carefully perused both these decisions cited by the learned Representatives of both the sides in support of their stand. It is observed that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b & Haryana High Court in the case of Prithipal Singh & Co. and while discussing the effects of such affirmation by the Hon'ble apex Court, the Jaipur Bench of Tribunal in its Third Member decision in the case of Subhash Gupta (Individual) vs. Dy. CIT (2003) 78 TTJ (Jp)(TM) 692 : (2003) 85 ITD 167 (Jp)(TM) has observed that the order of Hon'ble Punjab & Haryana High Court in the case of Prithipal Singh & Co. has merged with the order of Hon'ble Supreme Court and has become law of the land under Art. 141 of the Constitution. Explaining further, the Jaipur Bench has observed that as per the law so laid down by the Hon'ble Supreme Court, penalty under s. 271(1)(c) can be recovered in addition to tax payable on assessment and in case no tax is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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