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TMI Blog2015 (7) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that the admission of substantial question of law by the Hon'ble High Court lends credence to the bona fides of the assessee. - Tribunal has also taken the view that the question of examination of bona fides of the assessee shall arise only in respect of penalty levied u/s 271(1)(c) of the Act, in view of the Explanation-1 given under sec. 271(1)(c) of the Act. Since the provisions of sec. 158BFA(2) does not contain any provision as that of Explanation 1 to sec. 271(1)(c) of the Act, the Tribunal took the view that the contention that "bona fides of the assessee" due to admission of substantial question of law by the Hon'ble High Court is not applicable in respect of penalty levied u/s 158BFA(2) of the Act. On appreciation of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s proposition, the assessee had placed reliance on the decision of co-ordinate bench rendered in the case of M/s Ekta Exports (IT(SS)A No.27/Mum/2011 dated 24.8.2012), wherein the Co-ordinate bench of Tribunal had held 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). The Ld A.R submitted that the Tribunal, in the assessee's case, has held that the decision in the case of Ekta Exports (supra) was rendered in the context of the provisions of sec. 271(1)(c) of the Act. The Ld A.R, by inviting our attention to the order of Ekta Exports, submitted that the coordinate bench has only adjudicated the penalty levi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. 271(1)(c) of the Act. Since the said explanation cannot be extended to the penalty levied u/s 158BFA(2) of the Act, the Tribunal has held that the contention that admission of substantial question of law by the Hon'ble High Court would make the issue debatable shall not apply to the penalty levied u/s 158BFA(2) of the Act. Accordingly, the Ld D.R submitted that, since the Tribunal has expressed a conscious view, the same will not fall in the category of mistake apparent from record. 5. We have heard the parties and perused the record. A perusal of the impugned order of the Tribunal, more particularly paragraph 12 of the order, would show that the Tribunal has considered the decision rendered by the co-ordinate bench in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of law by the Hon'ble High Court is not applicable in respect of penalty levied u/s 158BFA(2) of the Act. On appreciation of these legal points, the Tribunal did not follow the decision rendered by the co-ordinate bench in the case of Ekta Exports (supra). 7. The Ld A.R contended that the decision rendered by one co-ordinate bench is binding on another bench. However, we have pointed out earlier that the co-ordinate bench, in the case of Ekta Exports (supra), did not examine about the applicability of Explanation 1 given under sec. 271(1)(c) to the penalty levied u/s 158BFA(2) of the Act. Hence, we are unable to agree with the contentions of the Ld A.R. If the co-ordinate bench had considered the above said question and if it had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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