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TMI Blog2015 (4) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... pertaiing to it. It is a strong reason to conclude that no penalty should be imposed in the hands of the assessee because the amount has already been offered and assessed in the hands of the sister concern. - CIT(A) was fully justified in ordering the deletion of penalty u/s 158BFA(2). - Decided against Revenue. - IT(SS)A No.27/Mum/2011 - - - Dated:- 24-8-2012 - Shri R.S.Syal And Shri Vivek Varma JJ For the Appellant : Shri Jayakumar (CIT-DR) For the Respondent : Shri Ajay R.Singh ORDER Per R.S.Syal, AM : This appeal by the Revenue arises out of the order passed by the Commissioner of Income-tax (Appeals) on 28.01.2011 deleting penalty of ₹ 8,82,884 imposed by the Assessing Officer u/s 158BFA(2) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at this page belonged to its sister concern, namely, Awin Exim Co. was not accepted despite the fact that the said sister concern disclosed a sum of ₹ 15 lakh as undisclosed income. Pursuant to the addition so made and confirmed by the Tribunal, the assessee went in appeal before the Hon ble Bombay High Court which was admitted but has not been disposed of till date. The Assessing Officer imposed penalty of ₹ 8.82 lakh towards this addition of ₹ 13.13 lakh, which came to be deleted in the first appeal. 3. Having heard the rival submissions and perused the relevant material on record it is observed that the assessee filed its return for the block period disclosing undisclosed income of ₹ 10 lakh, which amount admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e agreed that the amount was not recorded in the regular books of account. The important point which requires our consideration at this stage is that he did not refer to books of account of either the assessee firm or Awin Exim Co. It was a combined statement by Shri Satish on behalf of both the firms. The case of the assessee is that this page no.2 of Annexure-A4 pertained to Awin Exim Co. which offered a sum of ₹ 15 lakh as undisclosed income by categorically co-relating it with this page. 4. It is a settled law that the mere fact that an addition has been confirmed in the Tribunal per se cannot be a ground for imposing or sustaining penalty u/s 158BFA. Since the assessment and penalty proceedings are different and independent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its order dated 18.03.2011 in ITA No.2379/Mum/2009 that where a substantial question of law has been admitted by the Hon ble High Court against the addition confirmed by the Tribunal, then no penalty can be imposed u/s 271(1)(c). In reaching this conclusion, it has placed strong reliance on Third Member order passed by the Ahmedabad Bench of the Tribunal in the case of Roopam Mercantile v. DCIT [(2004) 91 ITD 237] and another order passed by the Ahmedabad Bench of the Tribunal in the case of Smt.Ramila Ratilal Shah v. ACIT [(1998) 60 TTJ (Ahd) 171]. In all the cases referred to above it has been held that the admission of substantial question of law by the Hon ble High Court lends credence to the bona fides of the assessee. 6. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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