Asstt. CIT Cir. 10 Pune, Pune V. Alexander Reuss, Pune

ITA 662/PUN/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3310 (ITAT-PUNE)
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 29-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY DAMLE
• Assessee Lawyers: AGIWAL; PRAMOD ACHUTAN
• Keywords: Salary income; Revised return
• Section: 143(3); 147; 27; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE SHRI SHAILENDRA KUMAR (JM) AND SHRI D. KARUNAKARA RAO (AM) SR.NO. ITA NO. A.Y. APPELLANT RESPONDENT 1. 662/PN/2010 2003-04 ASSTT. CIT CIR. 10, PUNE ALEXANDER REUSS 2. 410/PN/2010 2001-02 -DO- ROLF WEINMANN 3. 412/PN/2010 2002-03 -DO- KLAUS MOERMANN 4. 413/PN/2010 2003-04 -DO- -DO- 5. 414/PN/2010 2000-01 -DO- BERND FESENBECK 6. 415/PN/2010 2002-03 -DO- BERNARD APPELTAUER 7. 416/PN/2010 2003-04 -DO- -DO- 8. 418/PN/2010 2003-04 -DO- BERTHOLD SCHIMMER 9. 419/PN/2010 2000-01 -DO- JEURGEN ZIEGLER 10. 420/PN/2010 2001-02 -DO- -DO- 11. 421/PN/2010 2002-03 -DO- -DO- 12. 422/PN/2010 2001-02 -DO- AMNTONIO FARIA 13. 423/PN/2010 2002-03 -DO- -DO- 14. 424/PN/2010 2003-04 -DO- -DO- 15. 411/PN/2010 2000-01 -DO- ROLF WEINMANN 16. 425/PN/2010 2000-01 -DO- DR.RAINER BLBACH 17. 426/PN/2010 2001-02 -DO- -DO- 18. 427/PN/2010 2002-03 -DO- -DO- 19. 428/PN/2010 2003-04 -DO- DR.KLAUS PETER ARNOLD 20. 429/PN/2010 2000-01 -DO- LINO MARQUES 21. 430/PN/2010 2001-02 -DO- -DO- 22. 431/PN/2010 2002-03 -DO- -DO- 24. 432/PN/2010 2003-04 -DO- -DO- 25. 433/PN/2010 2000-01 -DO- UWE JAROSCH 26. 434/PN/2010 2001-02 -DO- -DO- 27. 435/PN/2010 2002-03 -DO- -DO- 28. 436/PN/2010 2000-01 -DO- ROLF LEOFFLER 29. 437/PN/2010 2001-02 -DO- -DO- 30. 438/PN/2010 2002-03 -DO- -DO- ITA NO 662/PN/2010 ALEXANDER REUSS AND OTHERS 2 APPELLANT BY : SHRI ABHAY DAMLE RESPONDENT BY : SHRI PRAMOD ACHUTAN AND SHRI AGIWAL ORDER PER BENCH ALL THESE APPEALS PERTAIN TO EMPLOYEES OF DAIMLER CHRYESLER AG, GERMANY, MANUFACTURER OF MERCEDES BENZ CARS ON SIMILAR ISSUE I.E. PENALTY U/S 271(1)(C) OF THE ACT. THEY ARE BEING DISPOSED OFF BY A COMMON ORDER FOR THE SAKE OF CONV ENIENCE. 2. IN ITA NO. 662/PN/2010 THE RETURN OF INCOME WAS FILED DECLARING TOTAL INCOME OF RS. 25,699/-. SUBSEQUENTL Y DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) FOR A.Y . 2004-05 IT WAS NOTICED THAT THE ASSESSEE HAD NOT DECLARED TAX PERQUISITE IN THE ORIGINAL RETURN OF INCOME FOR A.Y. 2004-05. DU RING THE COURSE OF ASSESSMENT PROCEEDINGS FOR A.Y. 2004-05, THE ASSESSEE FILED REVISED RETURN OF INCOME IN WHICH TAX PERQUIS ITES WERE INCLUDED. IT WAS SO OBSERVED THAT FOR A.Y. 2003-04 , A SIMILAR ISSUE WAS INVOLVED AND THAT THE INCOME ON ACCOUNT O F TAX PERQUISITE HAD ESCAPED ASSESSMENT FOR A.Y. 2003-04. HENCE THE ASSESSMENT FOR A.Y. 2003-04 WAS REOPENED U/S 147 OF THE ACT. ACCORDINGLY, NOTICE U/S 148 WAS ISSUED TO THE ASSES SEE ON 29-12- 2006 WHICH WAS SERVED ON 9-1-2007. IN RESPONSE TO THE NOTICE U/S 148 THE ASSESSEE FILED A LETTER ON 7-2-2007 IN WHICH THE ITA NO 662/PN/2010 ALEXANDER REUSS AND OTHERS 3 ASSESSEE STATED THAT ON 6-6-2006 A REVISED COMPUTAT ION OF INCOME FOR A.Y. 2003-04 WAS FILED VOLUNTARILY WITH CIT-V PUNE DECLARING A REVISED TOTAL INCOME OF RS. 36,17,571. FURTHER INCREMENTAL TAX OF RS. 11,12,235/- ARISING PURSUANT TO THE REVISION IN TOTAL INCOME WAS DEPOSITED BY DAIMLER C HRYSLER AG ON 27-3-2006 BY WAY OF TDS ALONG WITH INTEREST U/S 201 (1A). THE ASSESSEE ALSO FILED REVISED RETURN OF INCOME FOR A. Y. 2003-04 ON 7-2-2007 DECLARING REVISED TOTAL INCOME OF RS. 36,1 7,571/-. 3. THE ASSESSMENT U/S 143(3) WAS COMPLETED ON 30-11 -2007 ASSESSING THE TOTAL INCOME AT RS. 36,17,571/-. AS DISCUSSED ABOVE, THE ASSESSEE WAS AN EMPLOYEE OF DAIMLER CHRY SLER AG GERMANY WHICH IS A FOREIGN COMPANY. AS PER THE CON DITIONS OF EMPLOYMENT, M/S. DAIMLER CHRYSLER AG GERMANY HAD TO BEAR THE TAX ON REMUNERATION PAID TO THE ASSESSEE. ACCORDIN GLY SUCH TAX PARTAKES THE NATURE OF PERQUISITES AND WAS REQUIRED TO BE OFFERED FOR TAX BY GROSSING THE SAME IN VIEW OF SEC. 195A O F THE ACT. THE ASSESSEE WAS THUS REQUIRED TO OFFER SUCH TAX PERQUI SITES AND PAY TAX THEREON. HOWEVER, SUCH TAX PERQUISITES REMAINE D TO BE SHOWN IN THE RETURN OF INCOME FILED BY THE ASSESSEE . THE CASE WAS REOPENED. DURING THE ASSESSMENT PROCEEDINGS FO R A.Y. 2004-05 THE ASSESSEE WAS SPECIFICALLY REQUIRED TO I NFORM IF THERE WAS ANY SOURCE OF INCOME EXCLUDING INCOME SHOWN IN THE RETURN OF INCOME AND WHETHER ANY INCOME AROSE IN CONSEQUEN CE TO THE ITA NO 662/PN/2010 ALEXANDER REUSS AND OTHERS 4 SERVICES RENDERED IN INDIA TO THE EMPLOYER AND ANY OTHER COMPANY. THE AUTHORIZED REPRESENTATIVE OF THE ASSE SSEE HAS THEN FILED A REVISED WORKING OF THE INCOME OFFERI NG PERQUISITES. SIMULTANEOUSLY THE EMPLOYER COMPANY (FOREIGN COMPAN Y) HAS ISSUED TDS CERTIFICATE AFTER DEDUCTING TAX IN MARCH 2006. WHILE COMPLETING THE RE-ASSESSMENT U/S 147 READ WITH SECT ION 143(3) FOR A.Y. 2003-04 THE PENAL PROCEEDINGS U/S 271(1)(C ) WERE INITIATED AND SHOW CAUSE NOTICE U/S 274 READ WITH S EC. 271(1)(C) WAS ISSUED TO THE ASSESSEE. DETAILED SUBMISSIONS W ERE MADE. 4. AFTER CONSIDERING THE SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE, A.O OBSERVED THAT THERE IS NO DENIAL OF T HE FACT THAT THE VALUE OF THE PERQUISITES RECEIVED BY THE ASSESSEE I N THE FORM OF PAYMENT OF INDIA TAXES IN RESPECT OF THE ASSESSEES SALARY WAS NOT DISCLOSED BY THE ASSESSEE IN THE ORIGINAL RETURN OF INCOME. HOWEVER, THE CLAIM OF THE ASSESSEE IS THAT PENALTY FOR CONCEALMENT OF INCOME SHOULD NOT BE LEVIED ON HIM B ECAUSE HE VOLUNTARILY OFFERED HIS INCOME (NOT DISCLOSED IN TH E ORIGINAL RETURN) TO TAX BY FILING A REVISED RETURN COMPUTATI ON DETECTION OF ANY CONCEALMENT BY THE DEPARTMENT. THE A.O AFTER RE JECTING THE CONTENTIONS MADE ON BEHALF OF THE ASSESSEE LEVIED P ENALTY U/S 271(1)(C) BY OBSERVING THAT THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT BONAFIDE. THEREFORE, PENALTY OF RS . 11,12,234/- WAS LEVIED. THE SAME WAS CHALLENGED BEFORE THE CIT (A). ITA NO 662/PN/2010 ALEXANDER REUSS AND OTHERS 5 5. AFTER CONSIDERING THE SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE THE CIT(A) FOLLOWING THE DECISION IN THE C ASE OF MR. ROLF WEINMANN AND 35 OTHERS HAS DECIDED THE ISSUE IN FAV OUR OF THE ASSESSEE BY OBSERVING AS UNDER: 'I HAVE CAREFULLY CONSIDERED THE FACTS OF THESE CA SES, PERUSED THE RELEVANT DOCUMENTS, TAKEN INTO ACCOUNT THE VIEWS EXPRESSED BY THE AO WHILE LEVYING PENALTY, AN D THOSE EXPRESSED MY LEARNED PREDECESSOR WHILE CONFIRMING THAT ORDER, CONSIDERED THE MERITS OF THE ARGUMENTS PRESENTED BY THE LEARNED ARS OF THE APPELLANTS IN THEIR WRITTEN AND ORAL SUBMISSIONS, A ND EVALUATED THE ENTIRE EVIDENCE BEFORE ME IN THE LIGH T OF THE RELEVANT LEGAL PROVISIONS AND THE PRINCIPLES DI STILLED FROM THE JUDICIAL PRECEDENT ON THE SUBJECT AS ON DA TE. CONSIDERING THE STATURE AND THE FINANCIAL WHEREWITH AL OF THE COMPANY (DCAG) WHICH WAS THE APPELLANTS' EMPLOYER DURING THE RELEVANT TIME, THE APPELLANTS UNDOUBTEDLY HAD ACCESS TO THE VERY BEST AVAILABLE L EGAL ADVICE. I AM, THEREFORE, OF THE CONSIDERED VIEW THA T THE APPELLANTS WERE NEGLIGENT, OR AT LEAST THAT NEGLIGE NCE COULD BE IMPUTED TO THEM, FOR NOT DISCLOSING} THEIR FULL AND CORRECT TAXABLE INCOME AND PAYING DUE TAXES THEREON IN THE VERY FIRST INSTANCE, AT THE TIME OF FILING THE ORIGINAL RETURN ITSELF. FROM THE FOREGOING DISCUSSI ON, HOWEVER, IT IS ALSO CLEAR THAT ALTHOUGH AN ACT MAY BE DONE NEGLIGENTLY, IT COULD, NEVERTHELESS, BE A BONA FIDE ACT. THE LEGAL POSITION, AS EXPLAINED IN KANBY, AND REITERATED BY THE HON'BLE TRIBUNAL IN ITS ORDER IN THE APPELLANTS' OWN CASE CLEARLY SPELLS OUT THAT 'WHEN AN ASSESSEE ACTS BONA FIDE, IT CANNOT BE SAID THAT THE RE IS A FAILURE TO DISCHARGE STATUTORY OBLIGATION WHICH CAN BE VISITED WITH PENAL CONSEQUENCES. A PENALTY COULD ST ILL BE. LEVIED IN SUCH CASES BY RESORTING TO ONE OF THE EXPLANATIONS TO S. 271(L)(C). THE ONLY EXPLANATION THAT COULD BE. RELEVANT T THE FACTS OF THE PRESENT CASE IS EXPLANATION 1. HOWEVER, EVEN UNDER THE PROVISIONS O F EXPLANATION 1, ACCORDING TO THE TRIBUNAL, THE EXIST ENCE OF BONAFIDES IS GOOD DEFENCE IN THE SENSE THAT WHER E THE ASSESSEE IS ABLE TO ESTABLISH THAT HE HAS A REASONA BLE AND BONA FIDE EXPLANATION, AND THAT ALL THE FACTS NECESSARY FOR THE SAME AND MATERIAL TO THE COMPUTAT ION OF INCOME HAVE BEEN DISCLOSED, PENALTY WILL NOT BE VIABLE. IN MY CONSIDERED VIEW, THE PRESENT CASE FALLS UNDER THIS CATEGORY, AND, THEREFORE BEARING IN MIND THE LAW AS ITA NO 662/PN/2010 ALEXANDER REUSS AND OTHERS 6 EXPLAINED BY THE TRIBUNAL IN KANBAY, WHICH, AS ALRE ADY MENTIONED, HAS REMAINED UNDISTURBED BY SUBSEQUENT BINDING JUDICIAL PRECEDENT TO DATE, PENALTY U/S 271 (1)(C) CANNOT BE SUSTAINED IN THE PRESENT CASE. FACTS BEING SIMILAR, SO FOLLOWING THE SAME THE PENA LTY WAS DELETED BY THE CIT(A). THE SAME HAS BEEN OPPOSED BE FORE US. THE LEARNED AR SUPPORTED THE ORDER OF THE CIT(A) WHILE THE LEARNED DR SUPPORTED THE ORDER OF THE A.O., WITH THE HELP O F LEGAL PROPOSITION. 7. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL ON RECORD, WE FIND THAT DAIMLER AG A COMPA NY DEPUTED FEW EMPLOYEES TO MERCEDES-BENZ INDIA PVT. LTD. (HER EINAFTER REFERRED TO AS MB INDIA (FORMERLY KNOWN AS DAIMLE R CHRYSIE INDIA PVT. LTD. DURING THE COURSE OF THE EXPATRIAT ES INDIA DEPUTATION THE ASSESSEE WAS IN EMPLOYMENT WITH DAIM LER AG AS WELL AS MB INDIA. THE ASSESSEE FILED HIS RETURN OF INCOME ON 1-9- 2003 FOR A.Y. 2003-04 DECLARING INCOME OF RS. 25, 699/- COMPRISING OF SALARY FROM MB INDIA AND DAIMLER CHRY SLER AG. AS REGARDS SALARY INCOME RECEIVED BY THE ASSESSEE F ROM MB INDIA THE APPLICABLE TAXES THEREON WERE DEDUCTED AND PAID INTO THE INDIAN GOVERNMENT TREASURY BY MB INDIA. AS REGARDS THE SALARY INCOME BY THE ASSESSEE FROM DAIMLER AG THE ASSESSEE WAS ENTITLED TO A NET OF TAX SALARY AND THE INDIAN TA XES WERE BORNE BY DAIMLER AG AND HENCE THE LIABILITY TO PAY INDIAN TA XES IN RESPECT OF SALARY INCOME FROM DAIMLER AG WAS ON DAIMLER AG. GIVEN THE ITA NO 662/PN/2010 ALEXANDER REUSS AND OTHERS 7 ABOVE, DAIMLER AG IN CONSULTATION WITH ITS TAX ADVI SOR COMPUTED SALARY INCOME OF THE EXPATRIATES TAXABLE IN INDIA F OR EACH OF THE RELEVANT ASSESSMENT YEARS AND TAXES HEREON WERE DIS BURSED TO THE EXPATRIATES TO BE DEPOSITED DIRECTLY BY THE RES PECTIVE EXPATRIATES INTO THE INDIAN GOVERNMENT TREASURY. 8. IN EARLY 2005, THERE WAS A CHANGE IN DAIMLER AG S TAX ADVISOR. THE NEW TAX ADVISOR (M/S. S.R. BATLIBOI & CO.) COMMENCED THE WORK OF COLLECTING INFORMATION FOR TH E PURPOSE OF PREPARATION OF THE INCOME-TAX RETURNS FOR THE EXPAT RIATE EMPLOYEES OF DAIMLER AG FOR A.Y. 2005-06 WHICH WAS DUE FOR FILING BY 31-7-2005. IN THE COURSE OF COLLECTING T HIS INFORMATION, IT WAS DISCOVERED THAT IN RESPECT OF THE EXPATRIATE EMPLOYEES OF DAIMLER AG DEPUTED TO INDIA, ALL THE TAXABLE COMPON ENTS OF THEIR OVERSEAS COMPENSATION MAY POTENTIALLY NOT HAVE BEEN COMPLETELY REPORTED IN THEIR INDIAN TAX RETURNS FOR CERTAIN EA RLIER ASSESSMENT YEARS. BASED OP THIS, DAIMLER AG IN JULY 2005, COMM ENCED THE PROCESS OF DISCUSSIONS WITH THE TAX ADVISOR FOR EVA LUATING WHETHER SALARY INCOME FOR THE EARLIER YEARS IN RESP ECT OF ITS EXPATRIATES DEPUTED TO INDIA HAS BEEN INADVERTENTLY UNDERREPORTED. DAIMLER AG CONFIRMED TO ITS TAX ADV ISOR IN JULY 2005 ITSELF THAT IN CASE THERE WAS ANY UNDERREPORTI NG OF SALARY INCOME AND CONSEQUENTIAL UNDER PAYMENT OF TAXES IN THE PAST YEARS, THEN DAIMLER AG WOULD WANT TO SUO MOTO AND V OLUNTARILY ITA NO 662/PN/2010 ALEXANDER REUSS AND OTHERS 8 REPORT THESE TO THE INDIAN REVENUE AUTHORITIES AND VOLUNTARILY DEPOSIT TAXES AND INTEREST FOR ALL ITS EXPATRIATES. THUS NO REPORTING WAS NOTICED IN JULY 2005 AND STEPS WERE I NITIATED BY DAIMLER AG IN CONSULTATION WITH TAX ADVISOR. 9. THEREAFTER DETAILED REVIEW OF THE PAST REPORTING WAS DONE AND THE REVISED TAX LIABILITY OF THE EXPATRIATES CO MPUTED BASED ON INTERPRETATION OF THE INDIAN TAX LAWS BY THE NEW TA X ADVISOR OF DAIMLER AG AND ALSO ADOPTING VARIOUS CONSERVATIVE P OSITIONS DAIMLER AG THEN VOLUNTARILY AND SUO MOTO DEPOSITED THE INCREMENTAL TAX ARISING AFTER CONSIDERING THE TAXAB LE SALARY COMPONENTS, BY WAY OF TAX DEDUCTION AT SOURCE (TDS ) ALONG WITH INTEREST U/S 201(1A) AS PER THE PROVISIONS OF THE A CT FOR ALL THE RELEVANT ASSESSMENT YEARS ON 27-3-2006. THEREAFTER , DAIMLER AG ISSUED FORM 16 INTER ALIA TO THE ASSESSEE FOR TAX DEDUCTED AT SOURCE BY DAIMLER AG. SUBSEQUENTLY, DAIMLER AG COMMUNICATED THE FACT OF PAYMENT OF TAXES TO THE CC IT WHEREIN IT WAS INTER ALIA REQUESTED THAT THE PENALTY PROCEE DINGS SHOULD NOT BE INITIATED BECAUSE OF VOLUNTARY DISCLOSURE BY DAIMLER AG. HOWEVER, TIME LIMIT FOR FILING THE REVISED RETURN O F INCOME FOR A.Y. 2003-04 HAD EXPIRED. ACCORDINGLY, THE ASSESSEE COU LD NOT FILE A REVISED RETURN OF INCOME FOR A.Y. 2003-04 DESPITE T HE FACT THAT ENTIRE TAX LIABILITY INCLUDING THE TAXES ON THE INA DVERTENTLY UNDERREPORTED SALARY INCOME) HAD COMPLETELY BEEN DI SCHARGED. ITA NO 662/PN/2010 ALEXANDER REUSS AND OTHERS 9 10. THE A.O INITIATED RE-ASSESSMENT PROCEEDINGS FOR A.Y. 2003- 04 REQUESTING THE ASSESSEE TO FILE RETURN OF INCOME . IN RESPONSE TO THE NOTICE INITIATION OF RE-ASSESSMENT PROCEEDIN GS THE ASSESSEE FILED HIS REVISED RETURN OF INCOME FOR A.Y. 2003-04 WHEREIN SALARY INCOME REPORTED WAS EXACTLY AS COMPUTATION OF INCOM E FILED EARLIER IN JULY 2006 WITH CIT IV IN JUNE 2006. T HE A.O INITIATED PENALTY PROCEEDINGS FOR EACH OF THE ASSES SMENT YEARS. IN RESPONSE TO THE ABOVE MENTIONED NOTICES ISSUED B Y THE A.O DETAILED SUBMISSIONS WERE FILED ON BEHALF OF THE AS SESSEE DURING THE COURSE OF PENALTY PROCEEDINGS. HOWEVER, THE A.O CONCLUDED THE PENALTY PROCEEDINGS AND LEVIED PENALTY ON THE A SSESSEE AT 100% OF TAXES APPLICABLE TO THE INADVERTENTLY UNDER REPORTED INCOME DISCLOSED VOLUNTARILY IN THE REVISED RETURN OF INCOME OF THE ASSESSEE. ON APPEAL, THE CIT(A) DELETED THE PE NALTY. 11. WE FIND THAT DAIMLER AG ISSUED FORM NO. 16 INT ER ALIA, TDS DEPOSITED ON 20-3-2006. PURSUANT TO THE COPIES OF COMPUTATION OF INCOME OF THE ASSESSEE FOR ALL RELEVANT ASSESSME NT YEARS THE ASSESSEE FILED AN APPLICATION IN JUNE 2006 WITH CIT V ALONG WITH COPY OF FORM NO. 16 ISSUED BY DAIMLER AG. SUB SEQUENTLY IN RESPONSE TO NOTICE ISSUED BY THE A.O U/S 148 THE AS SESSEE FILED REVISED RETURN OF INCOME WITH A.O. THE INCOME DISC LOSED BY THE ASSESSEE IN THIS REVISED RETURN IS THE SAME AS EARL IER VOLUNTARILY ITA NO 662/PN/2010 ALEXANDER REUSS AND OTHERS 10 DISCLOSED INCOME AS MENTIONED ABOVE. THE INCOME DIS CLOSED BY THE ASSESSEE IN THE REVISED RETURN WAS NOT DISPUTED BY THE A.O. HOWEVER, ALONG WITH THE ASSESSMENT ORDER U/S 147 OF THE ACT THE A.O ISSUED ONE NOTICE TO THE ASSESSEE FOR LEVYING P ENALTY U/S 271(1)(C) WHICH IS NOT JUSTIFIED. THE A.O HAS LEVI ED PENALTY DESPITE THE FACT THAT THE PAYMENT OF TAX AND FILING OF REVISED COMPUTATION WITH CIT V WAS DONE VOLUNTARILY WITHO UT A FINDING IN THIS REGARD BY THE A.O OR IN THE PROCEEDINGS BEI NG INITIATED AGAINST THE ASSESSEE. IN THE ASSESSMENT YEAR UNDER CONSIDERATION, THE PENALTY HAS BEEN LEVIED WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE WAS ENTITLED TO NET PAY FROM DAIMLER AG AND INDIAN TAX ON SALARY RECEIVED BY THE ASSESSE E FROM DAIMLER AG. 13. IN THE FACTS AND CIRCUMSTANCES, THE A.O WAS NOT JUSTIFIED IN LEVYING THE PENALTY UNDER THE PROVISIONS OF SEC. 27 1(1)(C) OF THE SAME. THE SAME HAS RIGHTLY BEEN DELETED BY THE CIT( A). WE ARE NOT INCLINED TO INTERFERE WITH THE SAME BECAUSE THE ASSESSEE HAS FILED REVISED COMPUTATION OF INCOME PRIOR TO ANY RE ASSESSMENT PROCEEDINGS INITIATED BY THE REVENUE. THIS VIEW IS FORTIFIED BY THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL IN TH E CASE OF HANS CHRISTIAN GASS VS. DCIT (ITA NO. 1583/PN/2008 AND 5 05 TO 509/PN/2009 FOR A.Y. 2004-05, 2000-01 TO 2005-06 DA TED 26-5- 2010 WHEREIN EVEN AFTER 148 PROCEEDING TAX HAS BEEN DEPOSITED AND PENALTY HAS BEEN DELETED. THE OVERALL CONDUCT O F THE ITA NO 662/PN/2010 ALEXANDER REUSS AND OTHERS 11 ASSESSEE SHOWS THAT IT IS NOT A FIT CASE FOR LEVY O F PENALTY. SIMILAR ISSUE AROSE IN OTHER YEARS WITH OTHER EMPLOYEES OF SAME EMPLOYER PLACED ON SIMILAR SITUATION. FACTS BEING SIMILAR, SO FOLLOWING THE SAME REASONING WE ARE NOT INCLINED TO INTERFERE WIT H THE VIEWS OF THE CIT(A) WHO HAS DELETED THE PENALTY FOLLOWING TH E REASONS IN DECISION IN THE CASE OF ROLF WEINMANN. 14. IN THE RESULT, ALL THE APPEALS FILED BY THE REV ENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DAY OF SEPTEMBER 2010. SD/- SD/- (D. KARUNAKARA RAO ) ACCOUNTANT MEMBER (SHAILENDRA KUMAR YADAV JUDICIAL MEMBER) PUNE, DATED THE 30 TH SEPTEMBER 2010 ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT- II NASIK 4. THE CIT(A)- II NASIK 4. THE D.R. B BENCH, PUNE 5. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE