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TMI Blog2013 (6) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... t judgment in Commissioner of Income-Tax v. Gold Coin Health Food P. Ltd.,[2008 (8) TMI 5 - SUPREME COURT], we hold that penalty can be levied even, when the assessee's return of income is shown as 'loss'. In the present case, the Income Tax Appellate Tribunal merely deleted the penalty as there is no positive income. The Tribunal had not considered the case on merits whether there is violation of provision of Section 271(1)(c) of the Act. Since this Court is of the considered view that penalty can be levied even when the assessee's income of return is shown as loss, we set aside the order of the Income Tax Appellate Tribunal with a direction to the Tribunal to reconsider the matter after giving opportunity to the assesee to enable them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r also initiated penalty proceedings under Section 271 (1) (c) of the Act and by an order, dated 28.09.2000, the Assessing Officer levied the penalty of Rs.10,21,250/-. Aggrieved by both the assessment and levying of penalty, the Assessee filed appeals before the Commissioner of Income-Tax (Appeals). The Commissioner of Income Tax (Appeals) dismissed both the appeals. Aggrieved by that, the assessee filed appeals before the Income Tax Appellate Tribunal. The Income Tax Appellate Tribunal, in respect of the quantum (ITA.No.1210/Mds/2004), directed the Assessing Officer to compute the amount of brokerage at 8.5% on Rs.23,80,000/- and further directed that this amount should be deducted from the Gross Commission Received and partly allowed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim that it had paid brokers commission of 8-9%. Therefore, the Assessing Officer is justified in allowing the expenditure only Rs.5,000/-, which is based on valid material evidence and also in accordance with law. Learned counsel for the Revenue / appellant further submitted that in respect of the penalty, the Tribunal ought not to have deleted the penalty and the same is not in accordance with law and also not in confirmity with the Apex Court's judgment, cited supra, and relied on the following judgments in support of his proposition:- (i) (2006) 282 ITR 607 (Mad) (Commissioner of Income-Tax v. A.Hariraman); (ii) (2009) 313 ITR 397 (SC) (Commissioner of Income-Tax v. R..P.Plasto P. Ltd.,); (iii) (2008) 304 ITR 308 (SC) (Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal directed the Assessing Officer to compute the amount of brokerage at 8.5% on Rs.23,80,000/- and also further directed the Assessing Officer to grant deduction from the Gross Commission Received. We do not find any error in respect of the direction given by the Tribunal. The amount received was only the Gross Commission Received. The Assessee would have incurred expenditure towards earning the commission. It is pertinent to note that the Assessing Officer allowed only Rs.5,000/-, whereas the Tribunal, after considering the facts and circumstances, directed the Assessing Officer to give deduction of 8.5% on the gross income. There is no dispute in the present case that the assessee would have incurred expenditure for earning the gros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty can be levied under Section 271 (1) (c) of the Act only in the case of the assessee having positive income and not on loss. 8. Learned counsel for the Revenue / appellant contended that the judgments relied on by the learned counsel for the assessee / respondent are no more good law and in view of the Apex Court's judgment reported in (2008) 304 ITR 308 (SC) (Commissioner of Income-Tax v. Gold Coin Health Food P. Ltd.,) as well as this Court's judgment reported in (2009) 313 ITR 397 (SC) (Commissioner of Income-Tax v. R.M.Plasto P. Ltd.,) wherein it was held that the penalty can be leviable, even if the return of income is loss. There is no dispute that the issue is squarely covered by the above Apex Court's judgment, cited su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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