9911796707
TMI Blog2007 (10) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... - Mr. Vivek Sethi, Advocate for the appellant. AJAY KUMAR MITTAL, J. 1. The revenue has preferred this appeal under Section 260A of the Income Tax Act, 1961 (in short, the Act ) against the order dated 23.10.2006 passed by the Income Tax Appellate Tribunal, Amritsar Bench, Amritsar (for brevity, the Tribunal ) in IT (SS) A.No.26(ASR) 2004 for the block period 1.4.1987 to 17.4.1997 whereby the penalty amounting to Rs. 3,60,774/- only has been upheld and sustained by the Tribunal. 2. On 12.10.2007, the appeal was admitted to consider the following substantial question of law:- Whether on the facts and in the circumstances of the case, the ITAT was correct in law in directing the AO to quantify penalty on tax sought to be evaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggrieved by the order, the revenue went in appeal before the Tribunal. Vide order dated 23.10.2006, Annexure P.4, the appeal was dismissed. Hence the instant appeal by the revenue. 4. Learned counsel for the revenue submitted that the case of the respondent-assessee was not governed by Second Proviso to Section 158BFA(2) of the Act. According to the learned counsel, the assessee was liable to pay penalty on the total amount of undisclosed income determined amounting to Rs. 18,10,774/-. 5. After hearing learned counsel for the appellant, we do not find any merit in the aforesaid contention. 6. It will be expedient to reproduce sub section 2 of Section 158BFA relating to imposition of penalty which reads thus:- 158BFA (1) xx xx xx x ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) in the course of any proceedings to levy penalty equal to the sum which shall not be less than the amount of tax leviable but shall not exceed three times the amount of tax so leviable in respect of undisclosed income determined by the Assessing Officer under Clause (c) of Section 158BC. Further, first Proviso has been appended, according to which no penalty is imposable on a person if inter alia such person has furnished a return under clause (a) of Section 158BC; has paid the tax payable on the basis of such return or got the adjustment of the seized assets against the tax payable; has also produced the evidence of tax paid alongwith the return and has not filed any appeal against the assessment of that part of income which is shown in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The second proviso to Section 158BFA(2) stated that the first proviso to Section 158BFA(2) will not apply where undisclosed income determined by the A.O. is in excess of income shown in the return and that in such cases, the penalty shall be imposed on that portion of the undisclosed income determined which is in excess of the amount of the undisclosed income shown in the return. As such, as per the second proviso to section 158BFA(2), where the undisclosed income determined by the AO exceeds that shown by the assessee in the return of income, the penalty to be imposed is to be on the portion of the undisclosed income determined which is in excess of the amount of undisclosed income shown in the return. In the present case, the undisclos ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
