Deputy Commissioner of Income-tax, V. M/s. Advik Hi-Tech Pvt. Ltd., Pune

ITA 1027/PUN/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9161 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 15-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law
• Section: 143(3); 80IB; 147; 148

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.1027/PUN/2015 / ASSESSMENT YEAR : 2005-06 DY. COMMISSIONER OF INCOME TAX, CIRCLE-8, PUNE 411 044. . / APPELLANT V/S M/S. ADVIK HI - TECH PVT. LTD., GAT NO.357/99, CHAKAN TALEGAON ROAD, TAL. KHED, PUNE 410501. PAN : AACCA3106E . / RESPONDENT C.O.NO.28/PUN/2017 (ARISING OUT OF ITA NO.1027/PUN/2015 / ASSESSMENT YEAR : 2005-06 M/S. ADVIK HI - TECH PVT. LTD., GAT NO.357/99, CHAKAN TALEGAON ROAD, TAL. KHED, PUNE 410501. PAN : AACCA3106E . / APPELLANT V/S DY. COMMISSIONER OF INCOME TAX, CIRCLE-8, PUNE 411 044. . / RESPONDENT ASSESSEE BY : SHRI SHARAD SHAH REVENUE BY : SHRI AJAY MODI / ORDER PER ANIL CHATURVEDI, AM : THE PRESENT APPEAL FILED BY THE REVENUE AND THE CROSS- OBJECTION FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS) 6, PUNE DT.20.04.201 5 FOR THE ASSESSMENT YEAR 2005-06. / DATE OF HEARING : 24.07.2017 / DATE OF PRONOUNCEMENT: 26.07.2017 2 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER :- 2.1 ASSESSEE IS A COMPANY STATED TO BE ENGAGED IN THE BUSINESS OF MANUFACTURING OF AUTO COMPONENTS AND TRADING IN SHARES AND SECURITIES. ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 2005-06 ON 16.11.2005 BY DECLARING TOTAL INCOME AT RS.2,33,80,380/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT ON 19.11.2007 AND THE TOTAL INCOME WAS DETERMINED AT RS.2,37,12,348/-. LATER ON IT WAS NOTICED BY AO THAT SINC E THE ASSESSEE HAD NOT FULFILLED THE CONDITIONS LAID DOWN FOR SMALL - SCALE INDUSTRIES UNIT IT WAS NOT ELIGIBLE FOR DEDUCTION U/S 80IB(3) OF THE ACT. AO THEREFORE CONCLUDED THAT ASSESS EE HAD FAILED TO DISCLOSE TRUE AND CORRECT FACTS IN RESPECT OF ITS CLAIM U/S 80IB(3) OF THE ACT. ACCORDINGLY PROCEEDINGS U/S 147 OF TH E ACT WERE INITIATED BY ISSUING NOTICES U/S 148 OF THE ACT. THER EAFTER THE ASSESSMENT WAS FRAMED U/S 143(3) R.W.S. 147 OF THE A CT ON 08.12.2011 AND THE TOTAL INCOME WAS DETERMINED AT RS.3,29,73,040/- BY INTER-ALIA DISALLOWING THE CLAIM OF DEDUCTION OF RS.92,60,687/- CLAIMED U/S 80IB OF THE ACT. ON THE AFO RESAID DENIAL OF CLAIM OF DEDUCTION U/S 80IB(3), AO VIDE ORDER DT.28.03.2014 PASSED U/S 271(1)(C) OF THE ACT HELD THAT ASS ESSEE HAD CLAIMED FALSE DEDUCTION WHICH WAS NOT PERMISSIBLE WHICH LEAD TO CONCEALMENT OF INCOME WITHIN THE PROVISIONS OF SEC.271(1)(C) OF THE ACT AND ACCORDINGLY LEVIED PENALTY OF RS.27,78,206/-. AGGRIEVED BY THE PENALTY ORDER PASSED B Y THE AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DT.20.04.2015 (IN APPEAL NO.PN/CIT(A)-6/DCIT, CIR.8/295/14- 3 15) ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISE D THE FOLLOWING GROUNDS : 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE P ENALTY LEVIED U/S 271(1)(C) OF RS.27,78,206/- WHEN THE ASSESSEE H AS NOT GIVEN TRUE AND COMPLETE DISCLOSURE FOR THE CLAIM OF DEDUCTION U/S.80IB(3) OF THE I.T.ACT LEADING TO CONCEALMENT O F INCOME ? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) WAS JUSTIFIED IN DELETING THE PE NALTY LEVIED U/S 271(1)(C) OF RS.27,78,206/- WITHOUT CONSIDERING THE FACTS AND MERITS OF THE CASE? 3. ASSESSEE ALSO FILED CROSS-OBJECTIONS AND THE CROSS- OBJECTIONS RAISED BY THE ASSESSEE READS AS UNDER : 1. THE LD. AO ERRED IN NOT CONSIDERING ALL THE EXPLANA TIONS AND SUBMISSION SUBMITTED BY ASSESSEE IN THE COURSE OF P ENALTY PROCEEDINGS. 2. THE LD. AO ERRED IN LEVYING PENALTY IN RESPECT OF DISALLOWANCES OF CLAIMS OF DEDUCTION WHERE THE ISSU E IS DEBATABLE AND IS ADMITTED BY JURISDICTIONAL HIGH CO URT AS AN ISSUE WHICH INVOLVES SUBSTANTIAL QUESTION OF LAW. 4. BEFORE US, LD. D.R. SUPPORTED THE ORDER OF AO. LD.A.R. ON THE OTHER HAND REITERATED THE SUBMISSIONS MADE BEFORE LOWER AUTHORITIES AND SUPPORTED THE ORDER OF LD. CIT(A). HE FUR THER SUBMITTED THAT THE GROUNDS RAISED IN THE CROSS-OBJECTIO N ARE SUPPORTIVE OF THE ORDER OF LD.CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE, WE FIND THAT LD .CIT(A) WHILE DELETING PENALTY HAS GIVEN A FINDING THAT THE ASSESSME NT ORDER THAT WAS PASSED ON THE BASIS OF WHICH THE IMPUGNE D PENALTY U/S 271(1)(C) OF THE ACT HAS BEEN LEVIED HAS ITSELF B EEN 4 QUASHED BY THE TRIBUNAL VIDE ORDER DT.25.07.2014 AND IN S UCH A SITUATION, THE VERY BASIS OF LEVY OF PENALTY HAD BEEN LOST A ND THEREFORE THE PENALTY DOES NOT SURVIVE. THE AFORESAID FIN DING OF LD.CIT(A) HAS NOT BEEN CONTROVERTED BY REVENUE. IN VIEW OF THE AFORESAID FACTS, WE FIND NO REASON TO INTERFERE WITH THE ORD ER OF LD.CIT(A). THUS, THE GROUNDS OF REVENUE ARE DISMISSED. SINCE THE GROUNDS RAISED BY THE ASSESSEE IN THE CROSS- OBJECTION ARE IN SUPPORT OF THE ORDER OF LD.CIT(A), THE CROSS-OBJECTIONS OF THE ASSESSEE ARE ALSO DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY REVENUE AND THE CROSS-OBJECTION FILED BY ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON THE 26 TH DAY OF JULY, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 26 TH JULY, 2017. YAMINI / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5. 6. CIT(A)-6, PUNE. PRL.CIT-5, PUNE. , , / DR, ITAT, B PUNE; / GUARD FILE. / BY ORDER // TRUE COPY // ! / SR. PRIVATE SECRETARY , / ITAT, PUNE.