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TMI Blog2019 (7) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... ich penalty levied was deleted. Now, by way of this Miscellaneous Application Revenue seeks review of the order of the Tribunal, which is not permissible in the garb of rectification of mistake u/s. 254(2). Accordingly, this Miscellaneous Application filed by the Revenue stands dismissed. - M.A. No. 220/Mum/2019 arising out of I.T.A. No. 6275/Mum/2016 - - - Dated:- 18-6-2019 - Shri Shamim Yahya (AM) And Shri Sandeep Gosain (JM) For the Assessee : Shri Rajesh Sanghavi For the Department : Shri S. Senthil Kumaran ORDER PER SHAMIM YAHYA (AM) :- By way of this Miscellaneous Application Revenue seeks rectification of mistake apparent from record in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no defect was found in the documentation supporting the transaction and the ITAT had gave a finding that the assessee s explanation was unproved but not disproved. In identical situation, the Hon'ble jurisdictional High Court in the case of Upendra vs. Mithani (supra) has held that in these circumstances, the penalty u/s. 271(1)(c) cannot be imposed. 12. We further note that the Hon'ble Bombay High Court in the case of Bennett Coleman Co. Ltd. (in ITA No. 2117/2012, vide order dated 26.02.2013) has held that no penalty is leviable where there is only a change of head of income. The assessee deserves to succeed on the touch stone of this case law also. Another plea of the ld. Counsel of the assessee is that subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty u/s. 271(1)(c). Similarly as held by the Hon'ble Bombay High Court in the case of Nayan Builders (supra) when substantial question of law is admitted in the quantum appeal by the Hon'ble Bombay High Court, the issue becomes debatable and penalty u/s. 271(1)(c) cannot be levied. 14. Hence in the background of the aforesaid discussion and precedent we set aside the order of the authorities below, the penalty levied in this case is directed to be deleted. 15. In view of our adjudication on the issue of levy of penalty in favour of the assessee, the adjudication on other aspect of the challenge submitted by the ld. Counsel of the assessee regarding non specification of the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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