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TMI Blog2022 (3) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... e was taxed @ 20%, and subsequently penalty under consideration was imposed which stands sustained by the Ld. Commissioner in appeal. The retuned income and assessed income is the same, which in our considered view favors the Assessee‟s case and respectively following the judgmentsreferred above, we are of the considered view that simply because the Assessee may be on bonafide belief or misconceptionthat the Assessee do not have PE‟ in India and/or on the basis of certificate dated 19.05.2004 issued u/s 197 of the Act by the revenue department, chosen to compute the tax payable on its income u/s 44BBB of the Ac, that itself cannot entail imposition of penalty. Hence, we are inclined to delete the penalty imposed by the ld. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contracts. 4. The said charging of income tax @ 20% by the AO, was challenged by the Assessee before the ld.CIT(A), who vide order dated 10.01.2009 affirmed the same. 5. Thereafter, the said order in quantum appeal, was challenged before the ITAT (in short the Hon‟ble Tribunal) and the Hon‟ble Tribunal vide order dated 09.08.2021 passed in ITA No. 2124/Del/2009 dismissed the appeal of the Assessee and affirmed the charging of tax @20% on receipts from all the contracts. 6. The AO also imposed penalty u/s 271(1)(c) read with explanation 7 appended thereto of the Act to the tune of ₹ 39,00,519/- being 100% of Tax sought to be evaded. The Assessee challenged the levy of penalty before the Ld. Commissioner, who vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be made. 7.3 The Ld. Counsel further referred to various judgments inter-alia passed by the Hon‟ble Tribunal in the case of ADIT, Circle-2(1), New Delhi Vs. Nortel Network Ltd in ITA No. 5631/Del/2011 decided on July 31 2013 (2013) 37 Taxman.com 453 wherein, it was held: Income of the Assessee during re-assessment proceedings was not enhanced as is apparent from the assessment order and it was only the rate of tax which has been increased from 15% TO 20%. Since there is no change in the income declared and income assessed by the Assessing Officer, it cannot be said that there were any concealment of income. 8. ON the contrary, the Ld. DR supported the orders passed by the authorities below and submitted that the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thus penalty need not be imposed in all cases merely because it is at the discretion of the AO to do so. The Assessee in the instant case has neither deliberately attempted to contravene the provisions of the Act nor to evade payment of the tax levied there under. Also, there was no failure to offer any explanation during the course of the assessment proceedings for the subject year. Each and every explanation offered by the Assessee has been substantiated and no allegations as to either the bona fide of such explanation or as to disclosure to all material facts relatable to such explanations have been made in the course of assessment proceedings.The Assessee had filed its return of income in good faith and exercised due diligence and bon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the peculiar facts and circumstances as narrated above and specifically to the effects that in the instant case, the retuned income and assessed income is the same, which in our considered view favors the Assessee‟s case and respectively following the judgmentsreferred above, we are of the considered view that simply because the Assessee may be on bonafide belief or misconceptionthat the Assessee do not have PE‟ in India and/or on the basis of certificate dated 19.05.2004 issued u/s 197 of the Act by the revenue department, chosen to compute the tax payable on its income u/s 44BBB of the Ac, that itself cannot entail imposition of penalty. Hence, we are inclined to delete the penalty imposed by the ld. AO and affirmed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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