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TMI Blog2018 (4) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... ee - Decided against revenue. - ITA No. 102 of 2016 (O&M) - - - Dated:- 21-7-2017 - Mr. Ajay Kumar Mittal and Mr. Amit Rawal, JJ. Ms. Urvashi Dhugga, Sr. Standing Counsel for the appellantrevenue. Mr. B.M.Monga, Advodcate with Mr. Rohit Kaura, Advocate for the respondent-assessee. JUDGMENT Ajay Kumar Mittal,J. This order shall dispose of ITA No.102 and 105 of 2016 as according to the learned counsel for the parties, both the appeals are against the common order dated 12.10.2015, Annexure A.4, passed by the Tribunal in cross appeals filed by the assessee and the revenue. The facts are being extracted from ITA No.102 of 2016. 2. ITA No.102 of 2016 has been preferred by the revenue under Section 260A of the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer under section 40(a)(ia) for the assessment year 2005-06 whereas the assessee has failed to deposit the tax deducted prior to 28.2.2005 on or before 31.3.2005 as per provisions effective for assessment year 2005-06 as amended by the Finance Act 2008 effective from April 2005? ii) Whether on the facts and in the circumstances of the case, Hon ble ITAT is right in deleting the penalty levied on account of commission to doctors in view of the provisions of Section 69C of the Income Tax Act, 1961? 3. A few facts relevant for the decision of the controversy involved as narrated in ITA No.102 of 2016 may be noticed. Assessment was completed under section 143(3) of the Act on 24.12.2007 at an income of ₹ 2,38,00,717/- by m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income Tax (appeals) [CIT(A)]. Vide order dated 17.10.2012, Annexure A.3, the CIT(A) partly allowed the appeal by deleting the penalty levied in respect of additions at No. (i), (vi), (vii) and (viii) and confirming in respect of additions No.(ii), (iii), (iv) and (v). Not satisfied with the order, both the revenue and the assessee filed appeals before the Tribunal. The Tribunal vide consolidated order dated 12.10.2015 allowed the appeal filed by the assessee and dismissed the one filed by the revenue holding that the income was assessed under section 115JB of the Act and hence the penalty under Section 271(1)(c) of the Act could not be levied. Reliance was placed on the judgment of this court in CIT-I, Ludhiana vs. M/s Vardhman Acryl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed would not render the assessee liable to penalty under section 271(1) (c) of the Act on account of false claim of expenses. The relevant observations of the Delhi High Court read thus:- The question, however, in the present case, would be, as to whether furnishing of such wrong particulars had any effect on the amount of tax sought to be evaded. Under the scheme of the Act, the total income of the assessee is first computed under the normal provisions of the Act and tax payable on such total income is compared with the prescribed percentage of the book profits computed under section 115JB of the Act. The higher of the two amounts is regarded as total income and tax is payable with reference to such total income. If the tax payable u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of MAT under Section 115JB of the Act, penalty under Section 271(1)(c) of the Act could not be levied on additions and disallowances made in regular income. After examining the findings recorded by the CIT(A) and the material available on record, the Tribunal came to the conclusion that the ratio of the judgment in M/s Vardhman Acrylics Limited s case (supra) was applicable to the case of the assessee. Thus, the total penalty levied by the Assessing Officer under section 271(1)(c) of the Act was deleted. The relevant findings recorded by the Tribunal read thus:- 8. We have heard the learned representatives of both the parties, perused the findings of the authorities below and considered the material available on record. From the docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he book profits are deemed as the total income of the assessee in terms of Section 115JB of the Act. Where the income computed in accordance with the normal procedure is less than the income determined by legal fiction namely the book profits under section 115JB of the Act and the income of the assessee is assessed under section 115JB and not under the normal provision, the tax is paid on the income assessed under section 115JB of the Act, concealment of income would have no role to play and would not lead to tax evasion. Therefore, penalty cannot be imposed on the basis of disallowance or additions made under the regular provisions. 5. In view of the above, we find that the assessee being assessed under section 115 JB of the Act, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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