The Commissioner Of Income Tax-Iv v. Brian Hinchliffe

ASN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO.1958 OF 2012 The Commissioner of Income Tax-IV. ..Appellant. v. Brian Hinchliffe...Respondent. WITH INCOME TAX APPEAL (L) NO.1961 OF 2012 The Commissioner of Income Tax-IV. ..Appellant. v. Kjell Mouritz Nilson. ..Respondent. WITH INCOME TAX APPEAL (L) NO.1962 OF 2012 The Commissioner of Income Tax-IV. ..Appellant. v. Stephen Van Malorite. ..Respondent. WITH INCOME TAX APPEAL (L) NO.1963 OF 2012 The Commissioner of Income Tax IV.v. Shankar Banerjee. ..Appellant...Respondent. WITH INCOME TAX APPEAL (L) NO.1964 OF 2012 The Commissioner of Income Tax IV. ..Appellant. v. Stefan Johansson. ..Respondent. WITH INCOME TAX APPEAL (L) NO.1965 OF 2012 The Commissioner of Income Tax IV. ..Appellant. v. Stefan Johansson. ..Respondent. WITH INCOME TAX APPEAL (L) NO.1966 OF 2012 The Commissioner of Income Tax IV. ..Appellant. v. Stefan Johansson. ..Respondent. WITH INCOME TAX APPEAL (L) NO.1967 OF 2012 The Commissioner of Income Tax IV. ..Appellant. v. Stefan Johansson...Respondent. WITH INCOME TAX APPEAL (L) NO.1968 OF 2012 The Commissioner of Income Tax IV. ..Appellant. v. B.O. Bjarheden. ..Respondent. WITH INCOME TAX APPEAL (L) NO.1969 OF 2012 The Commissioner of Income Tax IV.v.B.O. Bjarheden. ..Appellant. ..Respondent. WITH INCOME TAX APPEAL (L) NO.1970 OF 2012 The Commissioner of Income Tax IV...Appellant.v. B.O. Bjarheden. ..Respondent. WITH INCOME TAX APPEAL (L) NO.1971 OF 2012 The Commissioner of Income Tax IV. ..Appellant. v. Henric Hauggard...Respondent. WITH INCOME TAX APPEAL (L) NO.1972 OF 2012 The Commissioner of Income Tax IV. v. Henric Hauggard. ..Appellant. ..Respondent. Mr.Tejveer Singh for the Appellant.Mr. F.V. Irani with A. K. Jasani for the Respondents. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATE : 14[th] February, 2013. PC: In all these appeals by the revenue, following common question of law has been raised for our consideration. ASN Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in deleting the penalty u/s. 271(1)(c) of the Income Tax Act,1961( the Act) despite there being clear finding of element of concealment of income by the A.O.? 2) The Tribunal in the impugned order has followed its decision in the matter of Hans Christian Gass v. DCIT and ACIT v. Alexander Reuss. The revenue had filed appeals to this Court against the orders of the Tribunal in the matter of Hans Christian Gass and Alexander Reuss (supra). This Court by order dated 22/6/2011 passed in Income Tax Appeal No.2209 of 2010 in the matter of Hans Christian Gass refused to entertain the appeal. Similarly, the revenue's appeal in the matter of Alexander Reuss being Income Tax Appeal No. 1610 of 2012 was also not entertained by this Court by its order dated 1/2/2013. 3)Mr. Tejveer Singh, Counsel for the respondent seeks to distinguish the decisions of this Court in the matters of Alexander Reuss dated 1/2/2013 and Hans Christian Gass dated 22/6/2011 on the ground that in the present cases the issue came to light only because of a notice for reopening of assessment ASN under Section 147 and 148 of the Act being issued by the revenue. Therefore, according to him the facts of these cases are different and thus penalty under Section 271(1)(c) of the Act is justified. 4) The distinction drawn by Mr. Singh is not correct as Mr. Irani points out that in the case of Alexander Ruess (supra) the revenue had issued notices for reopening of assessment u/s. 147 and 148 of the Act and sought to bring the reimbursement amount to tax. This was not disclosed originally in the return of income filed. Even in the matter of Hans Christian Gass, return as filed did not disclose reimbursement amount received from his parent company and only during the scrutiny proceedings, the reimbursement amount was offered to tax. ASN under Section 147 and 148 of the Act being issued by the revenue. Therefore, according to him the facts of these cases are different and thus penalty under Section 271(1)(c) of the Act is justified. 4) The distinction drawn by Mr. Singh is not correct as Mr. Irani points out that in the case of Alexander Ruess (supra) the revenue had issued notices for reopening of assessment u/s. 147 and 148 of the Act and sought to bring the reimbursement amount to tax. This was not disclosed originally in the return of income filed. Even in the matter of Hans Christian Gass, return as filed did not disclose reimbursement amount received from his parent company and only during the scrutiny proceedings, the reimbursement amount was offered to tax. 3)Therefore, in view of the factual situation being identical in the present appeals as well as in the earlier orders passed by this Court on 22/6/2011 and 1/2/2013, we see no reason to entertain the proposed question of law, for the reasons set out in our orders dated 22/6/2011 (Hans Christian Gass) in Income Tax Appeal No.2209 of 2010 and dated 1/2/2013 (Alexander Reuss) in Income Tax Appeal No.1610 of 2010. ASN 6) Accordingly, all these appeals are dismissed with no order as to costs. (M.S.SANKLECHA, J.) (J.P. DEVADHAR, J.)