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TMI Blog2012 (1) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... a penalty cannot be imposed on the assessee – Decided in favor of assessee. - ITA No. 215/2011 ITA No. 221/2011 - - - Dated:- 11-1-2012 - MR JUSTICE BADAR DURREZ AHMED, MR JUSTICE V.K.JAIN, JJ. For the Appellant : Ms Rashmi Chopra For the Respondent : Mr Rakesh Gupta, Ms Rani Kiyala Mr Kunal Nagpal BADAR DURREZ AHMED (ORAL) 1. These appeals are taken up together as they arise of the common order passed by the Income Tax Appellate Tribunal (hereinafter referred to as the said Tribunal ) dated 31.03.2010 in ITA Nos. 3322 3323/Del/2009 pertaining to the assessment years 2003-04 and 2004-05. Both these appeals are concerned with penalty proceedings under Section 271(1)(c) of the Income Tax Act 1961 (hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer and the share of each of the members of the Joint Venture Agreement having exceeded the maximum amount not chargeable to tax, the maximum marginal rate was applied to the A.O.P in terms of Section 167(B)(2) and the entire income was assessed in the hands of the A.O.P. This order was passed by the Assessing Officer and was confirmed by the Commissioner of Income Tax (Appeal) in the appeal filed by the assessee. 4. It may be pointed out that the assessee had referred to the CBDT circular No. 75/19/191/62-ITJ dated 24.08.1966 and it was contended that Sections 86 and 167 (B) of the said Act had no applicability in the facts of the present case. It was submitted that the said sections would come into play when the income was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra), on the binding nature of circulars, whereas the argument of the Department appears to be supported by the judgment of the Supreme Court in Achtaiah case (supra) on merits and on the interpretation of Section 4. The moot question is: which of the two views is to be preferred? 10. We therefore consider this to be a case fit for being decided by a Special Bench. The papers are accordingly placed before the Hon ble President for constitution of the same. 11. The suggested question for being referred to the Special Bench is: Whether the assessment made on the AOP is invalid, in the light of the Board s circular dated 24th August 1966 or is valid in the light of the judgment of the Supreme Court in Achtaiah s case (218 ITR 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the assessee who submitted that the only point that has to be examined is whether the Tribunal was right in deleting the penalty on the ground that two views were possible when the assessee filed the nil return. He submitted that the best proof of this submission is that the Tribunal itself, when it was considering the quantum appeal in respect of the assessment year 2003-04, was in doubt as to which of the two views were possible. It is for this reason that the matter had been referred to the Special Bench. The learned counsel for the revenue sought to counter the submission by stating that the referral order was passed on 04.04.2007 which is much after the date on which the return was filed and on that date there was no doub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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