The Principal Commissioner Of Income Tax 1 v. Adani Retail Pvt Ltd

IN THE HIGH COURT OF GUJARAT AT AHMEDABADR/TAX APPEAL NO. 968 of 2018 ================================================================ THE PRINCIPAL COMMISSIONER OF INCOME TAX 1VersusADANI RETAIL PVT LTD ================================================================ Appearance:MRS MAUNA M BHATT(174) for the PETITIONER(s) No. 1 for the RESPONDENT(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAHandHONOURABLE MR.JUSTICE A.Y. KOGJE Date : 06/08/2018 ORAL ORDER (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.Feeling aggrieved and dissatisfied with the impugned order passed by the learned ITAT dated 07.03.2018 passed in ITA No.2359/Ahd/2015 for Assessment Year 2008-09, by which the learned Tribunal has set aside the order of penalty imposed by observing that as the quantum issue is remanded to the first authority and the quantification of penalty is dependent upon the addition made to the income of the assessee, the Revenue has preferred the present Tax Appeal with the following proposed questions of law:- “Whether the Appellate Tribunal has erred in setting aside the issue of penalty under Section 271(1)(c) of the Act to the Assessing C/TAXAP/968/2018 ORDER Officer?” 2.It is reported that even against the order passed by the learned Tribunal in quantum appeal, the appeal by the Revenue being Tax Appeal No.521 of 2018 is rejected. Therefore, the order of remand made by the ITAT has been confirmed. While deleting the penalty, the learned ITAT has observed in para-4 as under:- “4.We have heard ld. representatives, and gone through the record. We find that sub-clause (iii) of section 271(1)(c) provides mechanism for quantification of penalty. It contemplates that the assessee would be directed to pay a sum in addition to taxes, if any, payable him, which shall not be less than, but which shall not exceed three times the amount of tax sought to be evaded by reason of concealment of income and furnishing of inaccurate particulars of income. In other words, the quantification of the penalty is dependent upon the addition made to the income of the assessee. In the present case, issue of addition on which penalty has been imposed has been set aside by the Tribunal to the file of the AO for re-adjudication vide order dated 13.12.2017 (supra). Thus, issue of penalty under section 271(1)(c) also deserves to be set aside to his file to decide whether the assessee is liable to be visited with penalty or not after adjudication on quantum addition on merit. Therefore, impugned penalty imposed but which shall not exceed three times the amount of tax sought to be evaded by reason of concealment of income and furnishing of inaccurate particulars of income. In other words, the quantification of the penalty is dependent upon the addition made to the income of the assessee. In the present case, issue of addition on which penalty has been imposed has been set aside by the Tribunal to the file of the AO for re-adjudication vide order dated 13.12.2017 (supra). Thus, issue of penalty under section 271(1)(c) also deserves to be set aside to his file to decide whether the assessee is liable to be visited with penalty or not after adjudication on quantum addition on merit. Therefore, impugned penalty imposed under section 271(1)(c) of the Act is set aside C/TAXAP/968/2018 ORDER to the file of AP to be decided in accordance with law as indicated above.” 3.We are in complete agreement with the view taken by the Tribunal. The order passed by the learned Tribunal does not call for any interference. No C/TAXAP/968/2018 ORDER to the file of AP to be decided in accordance with law as indicated above.” 3.We are in complete agreement with the view taken by the Tribunal. The order passed by the learned Tribunal does not call for any interference. No substantial question of law arises. The appeal deserves to be dismissed and it is accordingly dismissed. Sd/- (M.R. SHAH, J) SHITOLE Sd/- (A.Y. KOGJE, J)