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TMI Blog2013 (2) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... se of assessment proceedings similarly indicated the basis on which the deduction was claimed. When a revised return of income was filed, a disclosure was made to the effect that the return was revised with a view to add back the marketing expenses in the original return filed on 1 November 2004 with a view to avoid litigation in relation to the admissibility of the claim. The deduction under section 10A was stated to have been revised accordingly. That claim has been rejected by the assessing officer and in appeal as well as by the Tribunal. At the present stage, it is necessary for the Court to take note of the provisions of Section 220(6) under which the assessing officer is vested with the discretion, where an assessee has presented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al installments on or before 28 February 2013 and 31 March 2013. - WRIT PETITION NO.152 OF 2013 - - - Dated:- 30-1-2013 - DR. D.Y. CHANDRACHUD AND A.A. SAYED, JJ. Mr. Jehangir D. Mistri, Sr.Advocate with Mr.Nishant Thakkar and Mr. Atul Jasani for Petitioner. Mr.P.c. Chhotaray for Respondents. ORAL JUDGMENT (PER DR. D.Y.CHANDRACHUD, J.): 1. The Petitioner has challenged in this petition a notice of demand dated 30 March 2012 issued by the Assessing Officer under Section 156 of the Income Tax Act, 1961 for assessment year 2004-05 demanding payment of an amount of Rs.2.05 crores and an order dated 2 January 2013 of the Commissioner of Income Tax-2, Mumbai rejecting an application for stay of demand pending disposal of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding claim for a deduction under section 10A by the said amount. The TPO following his findings for earlier assessment years (A.Y.2002-03 and 2003-04) came to the conclusion that no services which would benefit the Petitioner, had been rendered by Deloitte and that the Petitioner should not have made the claim for reimbursement. The TPO accordingly passed an order on 10 August 2006 making an addition of Rs.5.86 crores under section 92CA(3), which was subsequently amended on 1 September 2006. 4. By an order dated 15 December 2006, the Assessing Officer passed an order under Section 143(3)(iii) determining a total income of Rs.6.41 crores after making an adjustment in terms of the findings of TPO, in the amount of Rs.5.86 crores to the the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand was rejected. 7. The following submissions have been urged on behalf of the Petitioner: (i) The Petitioner has a prima facie case having regard to the fact that the order imposing a penalty under Section 271(1)(c) does not find that there was any concealment of income or failure to file accurate particulars of income. As a matter of fact, in the present case, there was no concealment whatsoever since the claim of the Petitioner was exfacie disclosed, together with its basis, during the assessment proceedings; (ii) The mere fact that the addition which has been made, was confirmed in quantum proceedings, would not justify the imposition of a penalty unless the requirements of Section 271(1)(c) are fulfilled; (iii) Neither of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpenses in the original return filed on 1 November 2004 with a view to avoid litigation in relation to the admissibility of the claim. The deduction under section 10A was stated to have been revised accordingly. That claim has been rejected by the assessing officer and in appeal as well as by the Tribunal. 10. At the present stage, it is necessary for the Court to take note of the provisions of Section 220(6) under which the assessing officer is vested with the discretion, where an assessee has presented an appeal under section 246 or Section 246A and subject to such conditions as he may think fit to impose in the circumstances of the case to treat the assessee as not being default in respect of the amount in dispute in the appeal. When t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Before a penalty is imposed, the requirements of Section 271 must be established. Accordingly, it would have been open to the Court to set aside the impugned order in its entirety and to remand the proceedings back to the assessing officer for fresh consideration. However, since arguments before the Court have been addressed on the prima facie merits of the case as well, we are not inclined to follow that course of action since that would lead to another round of proceedings before this Court again. Having regard to the circumstances which have been noted hereinabove, we are of the view that an appropriate order for partial deposit of the penalty would be necessitated. An order for the deposit of the entire penalty is clearly not justifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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