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TMI Blog2014 (7) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... nless some other intention clearly emerges from the order itself, admission of a Tax Appeal by the High Court only indicates the Court's opinion that the issue presented before it required further consideration - It is an indication of the opinion of the High Court that there is a prima facie case made out and questions are required to be decided after admission. 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 u/s 271(1)(c) of the Act even if there are independent grounds and reasons to believe that the assessee’s case would fall under the mischief envisaged in the Clause (c) of Sub-Section (1) of Section 271 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and upheld by the CIT(A), without appreciating that the assessee had failed to offer any satisfactory explanation to show as to why the impugned income was not disclosed by him in his return and not offered for tax even though the said income was undoubtedly liable for tax under Section 45(3) of the Act and, therefore, the assessee had failed to rebut the presumption in Explanation 1 to Section 271(1)9c) of the Act? (ii) Whether in the facts and circumstances of the case and in law, the ITAT is justified in not upholding the penalty under Section 271(1)(c) of the Act imposed by the Assessing Officer and upheld by the CIT(A) holding that since the substantial question of law in respect of the addition on which the penalty has been levie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the settled position of law that the penalty under Section 271(1)(c) of the Income Tax Act, 1961 is impossible in respect of any concealment of income or furnishing of inaccurate particulars of income by the assessee. When for the addition made by the A.O. which is confirmed by the Tribunal, a substantial question of law is admitted by Hon ble Gujarat High Court, it has to be accepted that the issue is not free from debate, and hence, in our considered opinion, under these facts, it cannot be said that the assessee has concealed his income or furnished inaccurate particulars of income, and therefore, penalty is not justified. We, therefore, delete the same. Counsel for the Revenue pointed out that the sole reason recorded by the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be quashed and set aside and the matter is required to be remanded to the tribunal to decide the appeal afresh in accordance with law and on its own merits. 5. Shri Soparkar, learned advocate appearing on behalf of the respondent is not in a position to dispute the above and is not disputing that as such the aforesaid issue/questions are squarely covered by the decision of the Division Bench of this Court in Tax Appeal No. 606/2010. 6. Heard the learned advocates appearing on behalf of the respective parties and perused the impugned judgment and order passed by the tribunal. At the outset, it is required to be noted that by the impugned judgment and order, the tribunal has deleted the penalty imposed by the Assessing Officer and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ider the appeal afresh in accordance with law and on its own merits. 10. Having, thus, heard learned counsel for the parties, we reiterate that the sole ground on which the Tribunal deleted the penalty was that with respect to the quantum additions, the assessee had approached the High Court and High Court had admitted the appeal framing substantial questions of law for consideration. In view of the Tribunal, this would indicate that the issue was debatable and that therefore, no penalty under Section 271(1)(c) could be imposed. 11. We are of the opinion that the Tribunal erred in deleting the penalty on this sole ground. Admission of a Tax Appeal by the High Court, in majority cases, is exparte and without recording even prima facie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viz. that upon mere admission of a Tax Appeal on quantum additions, is an indication that the issue is debatable one and that therefore, penalty should automatically be deleted without any further reasons or grounds emerging from the record. 13. This is precisely what has been done by the Tribunal in the present case. Order of the Tribunal, therefore, cannot be sustained. Question framed is answered in favour of the Revenue and against the assessee. Order of the Tribunal is reversed. Since apparently the assessee had raised other contentions also in support of the appeal before the Tribunal, the proceedings are remanded before the Tribunal for fresh consideration and disposal in accordance with law. Tax Appeal is disposed of accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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