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TMI Blog2013 (3) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal in the case of Bansal Parivahan (India) P. Ltd. v. ITO [2011] 9 ITR (Trib) 565 (Mumbai) ; [2011] 43 SOT 619 (Mumbai) ?" 2. The assessment year in question is 2006-07. The Assessing Officer passed an order of assessment on December 8, 2008, for the assessment year 2006-07. In the course of the assessment order, the Assessing Officer added back an amount of Rs. 1,05,50,000 to the income of the assessee on the ground that though the assessee had deducted tax in the amount of Rs.2,11,000 that had not been deposited by the due date. The Assessing Officer noted that the amount had actually been deposited on June 30, 2006, and on July 7, 2006. The Assessing Officer relied on the provisions of section 40(a)(ia) in holding that inasmuch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent year through filing of revised return. This clearly establishes that the appellant has no intention of evading the tax by making the wrongful claim of expenditure. Concealment penalty in respect of this income can, therefore, not be sustained." 3.When the matter was carried in appeal to the Tribunal, the Departmental representative submitted that the order of the Commissioner of Income-tax (Appeals) in deleting the penalty on account of a disallowance of Rs. 1.05 crores may be correct in view of the decision of the Tribunal in the case of Bansal Parivahan (India) P. Ltd. v. ITO [2011] 9 ITR (Trib) 565. The Tribunal accordingly sustained the deletion of the penalty levied on the ground that it was covered by its own decision in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (ii) section 40(a)(ia) brings about a deeming fiction. The effect of the fiction is a matter of timing. As the order passed by the Commissioner of Income-tax (Appeals) would show the date of the assessment order in the present case is December 8, 2008. The assessee filed a revised return only on February 25, 2009, for the assessment year 2007-08 claiming this pay-ment as an expense. In other words, though the assessee had made a claim in the assessment year 2006-07, it was only after the claim was not allowed by virtue of the provisions of section 40(a)(ia) that a claim of expense was made in the subsequent year by filing a revised return and which claim came to be allowed. Hence, there can be no allegation of concealment on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the Tribunal relied entirely on the earlier decision in Bansal Parivahan, the other submissions which were urged on behalf of the assessee were not considered at all. In that view of the matter, we are of the view that parti-cularly in the light of this position, it would be appropriate and proper to remit the proceedings back to the Tribunal for reconsideration. We have recorded the submissions which have been urged on behalf of the assessee in support of the submission that quite apart from the correctness of the view which was taken in Bansal Parivahan, no penalty ought to have been imposed in the facts of the present case under section 271(1)(c) in view of the circumstances which weighed with the Commissioner of Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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