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TMI Blog2013 (7) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... law, the ld.CIT(A) has erred in deleting the penalty on technical ground without considering the merits of the facts. 3. On the facts and in the circumstances of the case, the ld.CIT(A) ought to have upheld the order of the AO. 4. It is therefore prayed that the order of the CIT(A) maybe set aside and that of the order of the AO be restored." 3. The learned CIT-DR submitted that the only issue in this appeal of the Revenue is regarding validity of penalty imposed under section 271(1)(c) of the Act amounting to Rs.210,33,19,341/-. He referred to para 4.0 onwards of the penalty order passed by the AO in support of the case of the Revenue. The learned CIT-DR submitted that the CIT(A) has passed an unusual order and has not dealt with the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) i.e. para 2.3. He fairly submitted that the assessee has raised four issues, which include the issue on merits of the case, in appeal before the CIT(A), and the CIT(A) has decided only one issue and other issues including that on merits were considered by the CIT(A), but were not adjudicated upon by him. He submitted that the CIT(A) in the last para of his appellate order has recorded that he has followed the decision of the ITAT, Ahmedabad in the case of Rupam Mercantile Ltd. (supra), and also other cases as discussed therein, and the penalty so imposed was directed to be cancelled on the ground that the claim of the appellant under section 80IA r.w.s. section 80IA(5) of the Act has given rise to substantial question of law, and it co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e particulars" in the case of appellant on merit is not deliberated, and the same can be looked into only after receipt of Hon'ble Gujarat High Court's judgment in appellant's case for the issue under consideration. We find that this approach of the CIT(A) in deciding the appeal is not sustainable in law. He has not decided all the issues raised before him by the assessee. We find that CIT(A) has deleted the penalty and allowed the appeal of the assessee on technical ground that since the appeal of the assessee has been admitted by the Hon'ble jurisdictional High Court in the quantum case of the assessee, therefore there is substantial question of law exist for determination and the levy of penalty is not warranted in the case of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucts(supra), with due regard, since the penalty is cancelled on technical ground, the issue about "furnishing inaccurate particulars" in the case of appellant on merit is not deliberated and the same can be looked into only after receipt of Hon'ble Gujarat High Court's judgement in appellant's case for the issue under consideration." We find that the Hon'ble jurisdictional High Court in the case of CIT Vs. Prakash S. Vyas (supra) has held that mere admission of an appeal by the High Court cannot without there being anything further, be an indication that the issue is debatable one so as to delete the penalty under section 271(1)(c) of the Act even if there are independent grounds and reasons to believe that the assessee's case would fall u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al High Court is binding on the Tribunal and all the functionaries within the jurisdiction of the Hon'ble High Court. Accordingly, we hold that the CIT(A) has erred in cancelling the penalty imposed under section 271(1)(c) of the Act on the only issue that since the appeal of the assessee in the quantum case has been admitted by the Hon'ble jurisdictional High Court, the issue is debatable one, so as to delete the penalty under section 271(1)(c) of the Act. The order of the CIT(A) is accordingly set aside to his file with direction to pass de novo appellate order to adjudicate all the contentions/issues raised by the parties before him and to pass a speaking order on all the issues before him after allowing reasonable opportunity of hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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