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TMI Blog2017 (6) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of assessee. - I.T.A. No.2958/Mum/2015 - - - Dated:- 7-6-2017 - SHRI C.N. PRASAD, JM AND SHRI MANOJ KUMAR AGGARWAL, AM For The Appellant : Nitesh Joshi Vipul Modi, Ld. AR s For The Respondent : Dr. A.K.Nayak, Ld. DR ORDER Per Manoj Kumar Aggarwal (Accountant Member) 1. The Captioned appeal by Assessee for Assessment Year [AY] 2010- 11 assails the order of Ld. Commissioner of Income Tax (Appeals)-8 [CIT(A)], Mumbai dated 27/02/2015 qua confirmation of penalty of ₹ 16,65,513/- u/s 271(1)(c) of the Income Tax Act,1961. 2. The registry has noted that the appeal is time barred by 17 days. However, the Ld. Counsel for Assessee [AR] drew our attention to the fact that the order of the Ld. CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttributed the claim to inadvertent error while filing the return of income. It was further contended that since the assessee paid tax on book profits u/s 115JB, being higher than the normal profits and therefore, no penalty could be levied in view of Hon ble Delhi High Court decision in the case of Nalwa Sons Investments Ltd. [327 ITR 543]. However, not convinced, the Ld CIT(A) confirmed the penalty against which the assessee is in appeal before us. 5. The Ld. AR drew our attention to CBDT circular No. 25/2015 dated 31/12/2015 issued in consequence to the cited judgment of Hon ble Delhi High Court. The Ld. AR explained that the assessee s returned income was Nil under normal provisions after set-off of unabsorbed depreciation an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T circular and the cited case law was misconceived. 7. The Ld. AR rebutted the same by contending that book Profit u/s 115JB computed by the assessee has not been disturbed by the revenue at any stage and therefore the revenue, at this stage, could not bring out altogether new facts / grounds to justify the penalty in the assessee s appeal and the Ld. DR could not improve upon the case of lower authorities from new angles. Further, the penalty has been initiated and levied only for quantum addition in normal income and therefore, the same stood squarely covered by the said circular. 8. We have heard the rival contentions and perused the relevant material on record. It is evident from the record that the returned income and assessed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which inaccurate particulars had been filed. 3. In this context, Hon'ble Delhi High Court in the case of CIT v. Nalwa Sons Investments Ltd. [2010] 194 Taxman 387, held that when the tax payable on income computed under normal procedure is less than the tax payable under the deeming provisions of section 115JB of the Act, then penalty under section 271(1)(c) of the Act could not be imposed with reference to additions/disallowances made under normal provisions. The judgment has attained finality. 4. Subsequently, the provisions of Explanation 4 to sub-section (1) of section 271 of the Act have been substituted by Finance Act, 2015, which provide for the method of calculating the amount of tax sought to be evaded for situation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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