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TAXAP/219/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 219 of 2011
=========================================================
COMMISSIONER
OF INCOME TAX-8 - Appellant(s)
Versus
M/S
INTRA OCULAR CARE PVT LTD - Opponent(s)
=========================================================
Appearance
:
MRS
MAUNA M BHATT for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 19/10/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
Revenue
is in appeal against the judgment of the Tribunal dated 25.6.2010
raising following questions for our consideration:
(A) “Whether
on the facts and in the circumstances of the case, the Appellate
Tribunal was justified in deleting penalty levied u/s.271(1)(c) of
the IT Act, 1961 in respect of disallowance of Rs.13,22,000/- being
purported sales promotion expenses paid to another sister concern
viz. M/s.Spectra Vision out of the income of Rs.16,31,000/- disclosed
during the course of search and seizure action u/s.132 of the I.T.
Act?”
(B) “Whether
on the facts and in the circumstances of the case, the Appellate
Tribunal was justified in deleting penalty levied u/s.271(1)(c) of
the IT Act, 1961 without appreciating the fact that neither such
claim was made by the assessee at the time of search proceedings
u/s.132 of the Act nor any papers/documents relating to the said
expenditure, were found and/or seized?”
(C) “Whether
on the facts and in the circumstances of the case, the Appellate
Tribunal was justified in deleting penalty levied u/s.271(1)(c) of
the IT Act, 1961 without appreciating the fact the assessee has not
discharged the onus put on it to prove that the said expenditure was
incurred wholly and exclusively for the purpose of business?”
(D) “Whether
on the facts and in the circumstances of the case, the Appellate
Tribunal was justified in deleting penalty levied u/s.271(1)(c) of
the IT Act, 1961 without appreciating the fact that the assessee’s
case is not covered in Explanation 5 to section 271(1)(c) of the Act,
1961?”
Issue
pertains to penalty levied by the Assessing Officer. Tribunal
ultimately deleted the penalty primarily on the ground that assessee
was entitled to benefit under Explanation 5 to Section 271(1)(c) of
the Act. It has come on record that the assessee had made necessary
declaration and filed its additional return and also paid tax. That
being the position, no question of law arises. Tax Appeal is,
therefore, dismissed.
(AKIL
KURESHI, J.)
(Ms.SONIA
GOKANI, J.)
(ashish)
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