Itxa/9/2013 Of Director Of Income Tax (It) - I v. M/S. Commerzbank Ag,(Successor To Dresdner Bank Ag

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.9 OF 2013 Director of Income Tax (IT)-I..Appellant-Versus-M/s. Commerzbank AG(Successor to Dresdner Bank AG)..Respondent ........... Mr. Tejveer Singh for the Appellant.Mr. Swapan Samdani i/b. Dave & Girish & Co. for the Respondent. ........... CORAM: S.C. DHARMADHIKARIAND A.A. SAYED, JJ. DATE :- 5[th] DECEMBER, 2014 P.C.: This Appeal was listed for directions and essentially because we directed the Registry to group the pending Income Tax Appeals and which involve a question regarding justification of imposition of penalty under section 271(1)(c) read with explanation 1 of the Income Tax Act, 1961. 2]This is one such case where the Revenue challenges the order of the Income Tax Appellate Tribunal, Mumbai Bench, dated 25[th] January, 2012 in Income Tax Appeal No.2387/Mum/2011 for assessment year 2007-08. 3]Mr. Singh submits though the matter is listed for directions, he would argue it on the point of admission. 1/2 wadhwa 4]We have heard him accordingly. With his assistance, we have perused the Appeal memo and all annexures thereto. The imposition of penalty by the Assessing Officer and upheld by the Commissioner of Income Tax has been deleted by the Tribunal and while deleting it, the Tribunal held that the Assessee is also a foreign bank. The provisions of section 115JB cannot apply to a foreign bank. Therefore, application of that provision to the Assessee was held to be invalid. It is in this light that the penalty was deleted. We make no comment nor we express any opinion on the applicability of the provision to the foreign bank. However, once the Tribunal reaches a conclusion that the applicability of the provision itself is in doubt and which is substantive provision/section of the Act, then, no penalty could have been imposed for not following the mandate or the provision which itself was inapplicable. The deletion of penalty, therefore, cannot be said to be perverse or vitiated by non-application of mind or any error apparent on the face of the record. The Appeal is, therefore, devoid of merits and is, accordingly, dismissed. No costs. (A. A. SAYED, J.) (S.C. DHARMADHIKARI, J.) 2/2