2013 (5) TMI 127

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..... Officer, the same was omitted - Tribunal holding that once the penalty itself has been set aside by the Commissioner of Income Tax (Appeals), the provisions of Section 263 of the Act could not be invoked by the Revenue. We find that the Commissioner of Income Tax has exercised jurisdiction under Section 263 of the Act in utter violation of not only of judicial proprietary also against the provisions of law - Once the penalty proceedings have been set aside in appeal, the Commissioner of Income Tax could not impose penalty on the basis of an order, which has since been set aside by the Commissioner of Income Tax (Appeals) - In view of the said fact, we do not find that any question of law arises for consideration out of an order passed by .....

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..... king the facts by stating perversely that the CIT(A) had decided the issue and this may be called a complete denial of the facts available on the record? 2. The assessee has received sales tax subsidy during the assessment year in question. The assessee claimed the said amount as a capital receipt but added a note that though the High Court has decided the matter holding that such amount is revenue receipt but an appeal against the order passed in pending before the Supreme Court, therefore, the same is reflected as capital receipt. The Assessing Officer rejected the contention of the assessee and treated the receipt of sales tax subsidy as a revenue receipt and initiated penalty proceedings. In appeal against the order passed by the Ass .....

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..... nal order of the Assessing Officer, the same was omitted. It is the said order passed by the Commissioner of Income Tax, which has been set aside by the Tribunal holding that once the penalty itself has been set aside by the Commissioner of Income Tax (Appeals), the provisions of Section 263 of the Act could not be invoked by the Revenue. 4. We find that the Commissioner of Income Tax has exercised jurisdiction under Section 263 of the Act in utter violation of not only of judicial proprietary also against the provisions of law. Once the penalty proceedings have been set aside in appeal, the Commissioner of Income Tax could not impose penalty on the basis of an order, which has since been set aside by the Commissioner of Income Tax (Appea .....

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