The Belgaum Dist. Central Co. Opp. Bank., Belgaum V. Jt.Commissioner of Income Tax ., Belgaum

ITA 11/PAN/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93542 (ITAT-PANAJI)
• Duration Of Justice: 2 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 04-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B BALA KRISHNA LD
• Assessee Lawyers: ASHOK KULKARNI
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI, HON'BLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 11/PNJ/2013 : (A.Y 2008 - 09) THE BELGAUM DISTRICT CENTRAL CO - OP. BANK, NR. CENTRAL BUS STAND, BELGAUM, OLD P.B. ROAD, BELGAUM PAN : AAAAB0839M ( APPELLANT) VS. COMMISSIONER OF INCOME TAX, DR. AMBEDKAR ROAD, OPP. CIVIL HOSPITAL, BELGAUM (RESPONDENT) ASSESSEE BY : ASHOK KULKARNI, ADV. REVENUE BY : B. BALAKRISHNA, LD. DR DATE OF HEARING : 06/07/2015 DATE OF PRONOUNCEMENT : 06/07/2015 O R D E R PER GEORGE MATHAN : 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT, BELGAUM IN F.NO. CIT/BGM/271(1)(C) - THE BDCC BANK LTD/12 - 13 DT. 29.12.2012 FOR THE A.Y 2008 - 09 LEVYING PENALTY U/S 271(1)(C). SHRI ASHOK KULKARNI, ADV. REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI B. BALAKRISHNA, LD. DR REPRESENTED ON BEHALF OF THE REVENUE. 2. IT WAS SUBMITTED BY THE LD. AR THAT THE ASSESSEE IS A CO - OPERATIVE SOCIETY WHICH IS DOING THE BUSINESS OF BANKING. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80P OF THE ACT. IT WAS THE SUBMISSION THAT THE ASSESSMENT HAD ORIGINALLY BEEN COMPLETED U/S 143(3) WHEREIN THE ASSESSEES 2 ITA NO. 11/PNJ/2013 (A.Y : 2008 - 09) CLA IM OF DEDUCTION U/S 80P HAD BEEN ALLOWED. IT WAS THE SUBMISSION THAT SUBSEQUENTLY AN ORDER U/S 263 WAS PASSED BY THE LD. CIT, BELGAUM WHEREIN THE ASSESSEES CLAIM OF DEDUCTION U/S 80P WAS REFUSED AND PENALTY U/S 271(1)(C) HAD BEEN INITIATED. IT WAS THE S UBMISSION THAT THE ORDER PASSED U/S 263 WAS THE SUBJECT MATTER OF AN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL HAD CONFIRMED THE ORDER PASSED U/S 263 OF THE ACT. IT WAS THE SUBMISSION THAT THE SAID ORDER CONFIRMING THE ORDER OF LD. CIT DENYING THE ASSES SEE BENEFIT OF DEDUCTION U/S 80P WAS THE SUBJECT MATTER OF APPEAL BEFORE THE HON'BLE HIGH COURT OF KARNATAKA. IT WAS THE SUBMISSION THAT IN THE MEANTIME PENALTY U/S 271(1)(C) HAD ALSO BEEN LEVIED ON THE ASSESSEE. IT WAS THE SUBMISSION THAT THE LD. CIT HA D LEVIED THE PENALTY ON THE GROUND THAT THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME. IT WAS THE SUBMISSION THAT THERE WAS NO FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN FACT, ALL THE DETAILS PROVIDED BY THE ASSESSEE IN ITS RETURN W ERE CORRECT. THE ONLY DIFFERENCE BETWEEN THE ASSESSEE AND THE REVENUE WAS IN REGARD TO THE CLAIM OF DEDUCTION U/S 80P ON ACCOUNT OF THE PROVISIONS OF SEC. 80P(4). IT WAS THE SUBMISSION THAT THIS DOES NOT CONSTITUTE FURNISHING OF INACCURATE PARTICULARS OF INCOME. FOR THIS PROPOSITION, HE PLACED RELIANCE ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT. LTD. REPORTED IN 322 ITR 158 WHEREIN AT PG. 166 THE HON'BLE SUPREME COURT HAS CATEGORICALLY HELD THAT A MERE MAKING OF THE CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGAR DING THE INCOME OF THE ASSESSEE. SUCH CLAIM MADE IN THE RETURN CANNOT AMOUNT TO THE INACCURATE PARTICULARS. IT WAS THE SUBMISSION THAT THE PENALTY AS LEVIED BY THE AO AND AS CONFIRMED BY THE LD. CIT WAS LIABLE TO BE DELETED. 3. IN REPLY, THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD MADE A FALSE CLAI M. 3 ITA NO. 11/PNJ/2013 (A.Y : 2008 - 09) 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AT THE OUTSET, THE PENALTY AS LEVIED BY THE LD. CIT IS FOR FURNISHING OF INACCURATE PARTICULARS. ADMITTEDLY, THE FIGURES FROM THE RETURN ITSELF HAS BEEN TAKEN FOR THE PURPOSE OF COMPUTING THE INCOME OF THE ASSESSEE. THERE IS NO VARIATION IN THE FIGURES. THE VARIATION BETWEEN ASSESSEE AND THE REVENUE IS ONLY IN REGARD TO THE CLAIM OF DEDUCTION U/S 80P IN RESPECT OF DIVIDEND INCOME OF RS. 62,18,000/ - WHICH HAS BEEN CLAIMED BY THE ASSESSEE AS BEING ELIGIBLE FOR DEDUCTION U/S 80P AND WHICH HAS BEEN HELD BY THE LD. CIT AS NOT BEING ELIGIBLE ON ACCOUNT OF PROVISIONS OF SEC. 80P(4). THE PROVISIONS OF SEC. 80P(4) ITSELF HAS BEEN BROUGHT INTO THE STATUTE BOOK FROM A.Y 2008 - 09 WHICH IS THE YEAR UNDER DISPUTE. A PE RUSAL OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT. LTD. REFERRED TO SUPRA CLEARLY SHOW THAT THE HON'BLE SUPREME COURT ITSELF HAS CATEGORICALLY HELD THAT SUCH ERRONEOUS CLAIM PER SE ITSELF WOULD NOT LEAD TO THE CON CLUSION THAT THERE WAS FURNISHING OF INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. ADMITTEDLY, THE REVENUE HAS NOT BEEN ABLE TO SHOW HOW THE BONA FIDE CLAIM OF THE ASSESSEE WAS FALSE. IN THE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE DECISI ON OF THE HON'BLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT. LTD. REFERRED TO SUPRA, THE PENALTY AS LEVIED BY THE LD. CIT STANDS DELETED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/07/ 2015. S D / - (N.S. SAINI) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 0 6 /07/ 201 5 *SSL* 4 ITA NO. 11/PNJ/2013 (A.Y : 2008 - 09) COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 5 ITA NO. 11/PNJ/2013 (A.Y : 2008 - 09) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 06/07/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 06/07/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 06/07/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 0 7 /07/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 0 7 /07/2015 SR.PS 6. DATE OF PRONOUNCEMENT 06/07/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 0 7 /07/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER