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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 ..... ess of the view in Bansal Parivahan would not be determinative, strictly speaking of the issue as to whether a penalty should be imposed under section 271(1)(c). The Tribunal subsequent to its decision in Bansal Parivahan has reconsidered the amendment which was brought about to section 40(a)(ia) by the Finance Act of 2010 with effect from April 1, 2010. In Bharati Shipyard [2011 (9) TMI 258 - ITAT MUMBAI], the Special Bench of the Tribunal has held that the amendment was not retrospective. Matter remanded back. - ITA(L) NO 1365/11 - - - Dated:- 30-1-2012 - CHANDRACHUD D. Y. DR. and SANKLECHA M. S. JJ. For appellant - Abhay Ahuja. For respondent - F.B Andhyarujina and Sameer G. Dalal. Judgment: 1. This appeal by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the penalty with the following observations : "So far as the penalty in respect of disallowance under section 40(a)(ia) is concerned, the appellant is correct in saying that the claim of expense made is correct and by virtue of the deeming provisions under section 40(a)(ia) only, allowability of the claim shifts in time. In other words, tax sought to be evaded works out to be nil. The fact of the matter is that the appellant never made the claim in respect of this expense in the computation of income for the assessment year 2007-08 until the claim was disallowed in the assessment for the assessment year 2006-07. The date of assessment order under section 143(3) for the assessment year 2006-07 is December 8, 2008, whereas the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue submitted that subsequent to the decision of the Tribunal in Bansal Parivahan and as a matter of fact after the impugned decision which was rendered on March 30, 2011, a Special Bench of the Tribunal held in Bharati Shipyard Ltd. v. Deputy CIT (I. T. A. No. 2404/Mum/2009, decided on September 9, 2011) since reported in [2011] 11 ITR (Trib) 599 (Mumbai) [SB] that the amendment which was brought about by the Finance Act, 2010, to section 40(a)(ia) was not remedial and curative in nature and would, therefore, not have retrospective effect. In view of this decision, the learned counsel submitted that the impugned order of the Tribunal cannot be sustained. 5. On the other hand, it was urged on behalf of the assessee that- (i) the entir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be imposed under section 271(1)(c). These submissions, some of which have already been adverted to in the earlier part of this order have been exhaustively catalogued in paragraph 4 of the impugned decision. The Tribunal in the course of its decision took the view that the issue was covered by the decision in Bansal Parivahan and sustained the deletion of the penalty only on that ground. As we have noted earlier, the submission which has been urged on behalf of the assessee in this case is that since the appeal arises not out of the quantum proceedings, but on the issue of penalty, the correctness of the view in Bansal Parivahan would not be determinative, strictly speaking of the issue as to whether a penalty should be imposed under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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