Commissioner of Income-tax-I v. Kamleshkumar Gandalal Shah
[Citation -2015-LL-0127-3]

Citation 2015-LL-0127-3
Appellant Name Commissioner of Income-tax-I
Respondent Name Kamleshkumar Gandalal Shah
Court HIGH COURT OF GUJARAT AT AHMEDABAD
Relevant Act Income-tax
Date of Order 27/01/2015
Judgment View Judgment
Keyword Tags debatable issue • oral order • waiver of penalty
Bot Summary: The revenue has preferred the present appeal on two questions. The learned counsel for the appellant submits that the main question is question and the second question is only incidental to question and therefore, only one question can be maintained, which reads as under: Whether the Appellate Tribunal has substantially erred in deleting the penalty of Rs.25,10,230/ levied u/s 27(1)(c) of the IT Act on disallowance of claim of deduction u/s. The relevant facts are that AO found that there is conscious and deliberate concealment of the Page 1 of 3 HC-NIC Page 1 of 3 Created On Wed Sep 30 15:44:04 IST 2015 O/TAXAP/58/2015 ORDER particulars by the assessee of the income to the tune of Rs.74,34,997/ and therefore, imposed the penalty of Rs.25,10,230/. In Appeal, the CIT(A), found that there was bonafide dispute for two possible views and therefore, penalty ought not to have been imposed and ultimately, the appeal was allowed. We further find that CIT(A) by a well reasoned order and after considering the various decisions of the Apex Court and Hon ble Gujarat High Court deleted the penalty. In our view, the pendency of such aspect to be finalised before this Court in the very case of the assessee would be a consideration for supporting the order of the Tribunal for deleting the penalty. In any case, we may not express any view on the pending Tax Appeal No.593/14 since it is yet to be finalised.


O/TAXAP/58/2015 ORDER IN HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 58 of 2015 ============================================================== COMMISSIONER OF INCOME TAX I....Appellant(s) Versus KAMLESHKUMAR GANDALAL SHAH....Opponent(s) ============================================================== Appearance: MRS MAUNA M BHATT, ADVOCATE for Appellant(s) No. 1 ============================================================== CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE S.H.VORA Date : 27/01/2015 ORAL ORDER (PER : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. revenue has preferred present appeal on two questions. However, learned counsel for appellant submits that main question is question (A) and second question is only incidental to question (A) and therefore, only one question can be maintained, which reads as under: Whether Appellate Tribunal has substantially erred in deleting penalty of Rs.25,10,230/ levied u/s 27(1)(c) of IT Act on disallowance of claim of deduction u/s. 80IB(10) of I.T. Act of Rs.74,34,997/ , which was already confirmed by CIT(A)? 2. We have heard Ms. Bhatt, learned counsel appearing for appellant. 3. relevant facts are that AO found that there is conscious and deliberate concealment of Page 1 of 3 HC-NIC Page 1 of 3 Created On Wed Sep 30 15:44:04 IST 2015 O/TAXAP/58/2015 ORDER particulars by assessee of income to tune of Rs.74,34,997/ and therefore, imposed penalty of Rs.25,10,230/ . 4. In Appeal, CIT(A), found that there was bonafide dispute for two possible views and therefore, penalty ought not to have been imposed and ultimately, appeal was allowed. Tribunal, in further appeal, at para 6 of impugned judgment, observed thus 6. We have heard rival submissions and perused material on record. We find that CIT(A) while deleting penalty has given finding that addition on which penalty was levied was debatable issue and 2 views were possible and bona fide of assessee cannot be rejected. We further find that CIT(A) by well reasoned order and after considering various decisions of Apex Court and Hon ble Gujarat High Court deleted penalty. aforesaid shows that Tribunal found that two views were possible and bona fide of asseessee could not be rejected. Tribunal has further recorded in para 6, as under: ..Before us, ld. D.R. could not controvert findings of CIT(A) by bringing any contrary material on record. 6. It is well settled proposition of law that when bona fide is believed and when two possible views were in existence, penalty could not have been imposed. Page 2 of 3 HC-NIC Page 2 of 3 Created On Wed Sep 30 15:44:04 IST 2015 O/TAXAP/58/2015 ORDER 7. learned counsel for appellant further contended that in respect of very assessee, for admissibility of deduction under section 80IB(10) r/w 80IB(1) of Income Tax Act, appeal of Revenue has been admitted, being Tax Appeal No.593/14, vide order dated 22.07.2014 and it was submitted that said aspect may be considered by this Court. 8. In our view, pendency of such aspect to be finalised before this Court in very case of assessee would be consideration for supporting order of Tribunal for deleting penalty. In any case, we may not express any view on pending Tax Appeal No.593/14 since it is yet to be finalised. We find that when on facts, Tribunal found two possible views, no substantial question of law would arise for consideration, as sought to be canvassed. 9. Under circumstances, appeal is meritless. Therefore, dismissed. (JAYANT PATEL, J.) (S.H.VORA, J.) bjoy Page 3 of 3 HC-NIC Page 3 of 3 Created On Wed Sep 30 15:44:04 IST 2015 Commissioner of Income-tax-I v. Kamleshkumar Gandalal Shah
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