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9. In the first round, the Tribunal has given relief by deleting the penalty in question on the basis of decision of Hon'ble Supreme Court in the case of Dilip & Shroff Vs. JCIT, 291 ITR 519 (SC) that there was no conscious concealment of particulars of income or furnishing inaccurate particulars of income by the expatriates and on the basis that expatriates had relied upon the interpretation of Indian Tax Laws received from the expatriates' employer and earlier consultants/advisors of the expatriates' employer supporting the claim of the expatriates that bonafide mistake was committed by them and the same cannot be visited by penal consequences. The Hon'ble Bombay High Court in all the 10 cases before us in second rounds in the appeals preferred u/s. 260A before it by the revenue against earlier order dated 30th April 2008 of the Tribunal held that the Tribunal has passed the order ignoring the ratio laid down by Hon'ble Supreme Court (Division Bench) in the case of Dharmendra Textile Processors (Supra). The matter is accordingly remanded by Hon'ble High Court to the file of the Tribunal for reconsideration of the issue in view of the decision of Hon'ble Supreme Court in the case of Dharmendra Textile Processors (Supra).

Thus, in other words, if an assessee in respect of any facts material to the computation of his total income is able to offer an explanation which is not found by the Assessing officer or Commissioner (Appeals) or Commissioner to be false, then the amount added or disallowed in computing the otal income of such person as a result thereof shall, for the purpose of clause © of section 271(1) be not deemed to represent the income in respect of which particulars have been concealed. Concealment of particulars of income on the part of the assessee would also not be deemed to levy penalty under section 271(1)(c ) as per Explanation -1 where such person offers an explanation which is bona fide and that all the fracts relating to the same and material to the computation of his total income have been disclosed by him. The ld. CIT(A) has basically upheld the pemnatly levied by the AO in the present case on the basis that the assessee brought nothing on record to substantiate his claim of boa fide belief regarding non taxability of the tax perquisite. Thus the issue revolve around the fact as to whether in the present case the assessee was able to substantiate his explanation of bona fide belief regarding non taxability of tax per quisite, or nor. Explanation of the assessee in this regard remained that he is a foreign national who was working as Managing Director of Sandvik Asia Ltd, a company incorporation in India. His contractual service period for SAL in India was for the period assessment years 1998-99 to 05-06. SAL deducted the applicable taxes on salaries paid to the assessee and pait it to the Indian Government Treasury. In addition to the employment income earned from SAL, the assessee also received some emolument outside India and reimbursement of tax, being difference in the tax rates between India and Sweden from Sandvik AB, Sweden though the employment was exercised in India. It was submitted that in the original return of income filed by the assessee for each of the above mentioned assessment years, total income filed by the assessee for each of the above mentioned assessment years, total income reported by the assessee included remunation received in India from SAL and emoluments received outside India from Sandvik AB, Sweden,. Before being deputed to India, the assessee was assured by Sandvik AB, Sweden that any increase in over all tax liability of the assessee on account of different tax rates in India would be reimbursed to him. Such reimbursement was credited to his regular saving bank account. It was 11 ITA . Ns 421 to 426, 437 t 441 & 497/PN/08 Klaus Moermann etc., A.Y. 2004-05 Page of 20 submitted that for the purpose of filing of return in India, the assessee was assisted by well known tax consultants appointed by Sandvik Group. Such tax consulstant computed the taxable income of assessee by analyzing various salary components received by him and determined the taxability of these components. The assessee based on the bona fide belief that reimbursement of incremental tax liability in India from Sandvik AB, Sweden being part of a tax rationalization measure is not a separate component of income liable to tax in India did not include this reimbursement while reporting his total income in the return of income filed for various years during his Indian assignment. During the course of assessment proceedings initiated under section 143(3) of the Act for the assessment year 2004-05, the assessee could learn that even the reimbursement towards tax rationalization needs to be considered asd taxable perquisite and offered to tax in India. It was submitted that assessee accordingly agreed to the addition to the total income on account of grossed up tax perquisite as proposed by the AO and paid the additional tax including applicable interest as demanded by the AO for A.Y. 2004-05. It was submitted that as additional tax liability arise on account of inadvertent bona fide error in understanding of law, which was agreed upon by the assessee in course of assessment proceedings, the assessee did not prefer an appeal before the ld. CIT(A) against the assessment order. It was further explained that the assessee also voluntarily, on 30th December, 2006 i.e. within 1.5 months, paid off the incremental tax due along with applicable interest for all earlier and subsequent assessment years, including the assessment year 1998-99 and 1999-2000, not withstanding that time limit for issue of notice for assessment/reassessment under section n 147 for the said two assessment years i.e. 1998-99 and 1999-2000 had already elapsed, after rectifying similar inadvertent error made in these years. It was submitted that it was done despite of the fact that the assessee had already retired from his employment. On the objection of the department that the assessee was assisted by the tax experts so no excuse that the assessee was ignorant of the relevant provisions of law is available to the assessee, the submission of the ld. A/R remained that the tax perquisite law had under gone a significant change in the past years lead to a lot of uncertainty regarding the same and thus based on the advise of tax consultants, the assessee was under a bona fide belief at the time of signing his original returns of income that the information given in his original returns of income was correct and complete and that the amount of total income and other particulars shown therein 12 ITA . Ns 421 to 426, 437 t 441 & 497/PN/08 Klaus Moermann etc., A.Y. 2004-05 Page of 20 were truly stated and were in accordance with the provisions of tax laws and thus he filed his original returns. It was further submitted that the assessee was entitled to reimbursement of incremental tax in I ndia from Sandvik AB, Sweden and as such there was no economic rational for the assessee to conceal or under report his overseas salary income. The further plea of the ld. A/R before us also remained that the related law was complicated and possibility of mistake even on the part of an expert cannot be ruled out. In this regard he has placed reliance on the decision of Mumbai Bench of the Tribunal in the case of Sunil Chandra Vohra vs. ACIT (2009) 38 SOT 365 (Mumbai). Considering these material facts in totality, we do not find reason to doubt the bona fide of above stated explanation furnished by the assessee during the course of penalty proceedings. The ld. CIT(A) has denited the explanation of the assxessee on the basis that the assessee brought nothing on record to substantiate his claim of bona fide belief regarding non taxability of tax perquisite and in the light of judgment of Hon'ble Supreme Court in the case of UOI vs. Dharmendra Textile Processors (2007) 295 ITR 244 (SC). So far as applicability of the said decision in the case of Dharmendra Textile Processors (supra) is concerned, we will discuss is in succeeding paras.

11. So far as applicability of the decision of Hon'ble Supreme Court in the case of UOI vs. Dharmendra Textile Processors (supra) is concerned, we after having gone through the decisions relied upon by the ld. A/R find substance in his argument that the Hon'ble Judges in the case of UOI vs. Rajasthan Spinning & Weaving Mills (supra) have been pleased to clarify that the principles laid down in the case of UOI vs. Dharmendra Textile Processors (supra) needs to be interpreted to mean that every case of levy of penalty needs to be examined based on the facts of each case and conditions specified in the law in this regard. For a ready reference the relevant extract of the decision in the case of UOI vs. Rajasthan Spinning & Weaving Mills (supra) is being reproduced hereunder :-

12. In the result, appeals are allowed."

18 ITA . Ns 421 to 426, 437 t 441 & 497/PN/08 Klaus Moermann etc., A.Y. 2004-05 Page of 20 It is apparent from the contents of para No.11 of the order of the Tribunal in the case of Hans Christian Gaas Vs. DCIT (Supra) that the Hon'ble Supreme Court in the case of Union of India Vs. Rajasthan Spinning & Weaving Mill Ltd. (2009) 23 DTR 158 (SC) have been pleased to clarify that the principles laid down in the case of Union of India Vs. Dharmendra Textile Processors (Supra) needs to be interpreted to mean that every case of levy of penalty needs to be examined based on the facts of each case and the conditions specified in the law in this regard. The other decisions including decision of Hon'ble Supreme Court in the case of Dilip & Shroff Vs. JCIT have also been discussed therein. The Pune Bench of the Tribunal in the case of Kambay Software India (P) Ltd. Vs. DCIT (Supra) had also occasion to discuss the law laid down in the case of Dharmendra Textile Processors (Supra) vide its order dated 28th April 2009. It is also worth noting that decision of the Tribunal on the issue in the case of Hans Christian Gaas Vs. DCIT (Supra) has been approved by the Hon'ble jurisdictional High Court vide its order dated 22nd June 2011 in Income Tax Appeal No. 2209 of 2010 and Another, a copy has been filed by the Ld. A.R. The relevant para No. 3 of the said judgment is being reproduced hereunder :