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TMI Blog2014 (8) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... w:- "i) Whether on the facts and in the circumstances of the case, the Hon'ble ITAT is justified in law in upholding cancellation of penalty under section 271(1) (c) even though the claim of the assessee treating sales tax subsidy was contrary to the decision of jurisdictional High Court in the case of Abhishek Industries 286 ITR 1 (P&H) and also in assessee's own case? ii) Whether on the facts and in the circumstances of the case, the claim of the assessee amounted to furnishing of inaccurate particulars in view of direct judgment of jurisdictional High Court in the case of Abhishek Industries 286 ITR 1? iii) Whether on the facts and the circumstances of the case, the Hon'ble ITAT was justified in law in upholding the order of lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee and deleted the penalty of `1,49,98,144/-. Aggrieved by the order, the revenue filed appeal before the Tribunal. Vide order dated 14.6.2013,Annexure A.IV, the Tribunal dismissed the appeal. Hence the instant appeal by the revenue. 3. Learned counsel for the appellant-revenue relying upon judgment of Delhi High Court in CIT vs. Zoom Communication (P) Limited, (2010) 327 ITR 510 submitted that the penalty was leviable as the assessee respondent had claimed wrong deduction on account of subsidy. It was urged that even while determining profits under section 115 JB of the Act, the wrong claim made by the assessee would make him liable for penalty under section 271(1) (c) of the Act on account of concealment of income. 4. After hearing lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the assessment was done under the normal procedure. The assessment as per the normal procedure was, however, not acted upon. On the contrary, it is the deemed income assessed under section 115JB of the Act which has become the basis of assessment as it was higher of the two. Tax is thus paid on the income assessed under section 115JB of the Act. Hence when the computation was made under section 115JB of the Act, the aforesaid concealment had no role to play and was totally irrelevant. Therefore, the concealment did not lead to tax evasion at all." We are fully in agreement with the view expressed in the aforesaid pronouncement. 6. The Tribunal placing reliance on judgment of Delhi High Court in Nalwa Sons Investments Limited's c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egular provisions.' We further find that the decision of Hon'ble Delhi High Court in CIT vs. Zoom Communication P.Limited (supra) is totally distinguishable because the penalty was deleted by the Tribunal by holding that there was no concealment. However Hon'ble High Court reversed that decision. This decision is distinguishable because in case of CIT v Nalwa Sons Investment Limited (supra) penalty has been deleted by holding that no concealment can be inferred where income has been assessed under section 115JB of the Act. Accordingly, following the decision of Hon'ble Delhi High Court in CIT v Nalwa Sons Investments Ltd. (supra), we hold that the learned CIT(A) has correctly deleted the penalty." 7. In view of the above, we do not fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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