ITO, Sonepat V. M/s. Parshant Generator Co., Bahadurgarh

ITA 1131/DEL/2013

• Counselvise Citation: 113120114 RSA 2013
• Duration Of Justice: 1 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 12-08-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 27-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ KUMAR CHOPRA
• Keywords: Difference of opinion
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER & SHRI J.S. REDDY, ACCOUNTANT MEMBER ITA NO. 1131/DEL/2013 ASSESSMENT YEAR: 2008-09 ITO, VS. PARSHANT GENERATOR CO., WARD-4, 1401, SECTOR-06, SONEPAT. BAHADURGARH. AAIFP8719M (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANOJ KUMAR CHOPRA, SR. DR RESPONDENT BY : NONE ORDER PER DIVA SINGH, J.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 18/12/2012 OF CIT(A)-ROHTAK PERTAINING TO 2008-09 A SSESSMENT YEAR ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS BY DELETING THE PENALTY U /S 271(1)(C) OF THE I.T. ACT, AMOUNTING TO RS. 8,31,315/- IMPOSED BY AO AS T HE ADDITION WAS MADE ON ACCOUNT OF NON-PAYMENT OF OUTSTANDING CST B EFORE FILING OF RETURN THEREBY CONCEALING AND FURNISHING INACCURATE PARTICULARS OF INCOME; THE LD.CIT(A) DELETED THE SAID PENALTY WITH OUT APPRECIATING THE FACTS OF THE CASE; 2. THAT THE APPELLANT CRAVES FOR THE PERMISSION TO ADD , DELETE OR AMEND THE GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING O F APPEAL. 2. AT THE TIME OF HEARING AN ADJOURNMENT WAS MOVED ON BEHALF OF THE ASSESSEE. HOWEVER, ON CONSIDERING THE MATERIAL AVA ILABLE ON RECORD AND ITA NO. 1131/D/2013 PARSHANT GENERATOR CO. 2 HEARING THE LD. SR. DR IT WAS CONSIDERED APPROPRIAT E TO PROCEED WITH THE HEARING IN THE SAID APPEAL. 3. THE RELEVANT FACTS OF THE CASE ARE THAT IN THE C ASE OF THE ASSESSEE DISALLOWANCE OF RS. 32,82,056/- WAS MADE U/S 43B OF THE ACT IN RESPECT OF CST PAYABLE. OUT OF THE SAID DISALLOWANCE, RS. 24, 32,056/- WAS UPHELD BY THE CIT(A) IN APPEAL VIDE HIS ORDER NO. 370/RTK/ 2010-11 DATED 02.05.2011. THE AO MADE A DISALLOWANCE OF FBT OF R S. 13,708/- WHICH WAS NOT PRESSED IN APPEAL. ON THE SAID DISALLOWANC ES, THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. IN R ESPONSE TO THE SHOW CAUSE GIVEN BY THE AO, THE ASSESSEE CONTENDED THAT CST PAYABLE WAS TREATED AS ALLOWABLE EXPENDITURE DUE TO DIFFERENCE OF OPINION. THE AO HOWEVER HELD THAT THE EXPLANATION OFFERED BY THE AS SESSEE IS NOT SUSTAINABLE AND LEVIED MINIMUM PENALTY OF RS. 8,31, 315/-. 4. THE ISSUE WAS CHALLENGED IN THE APPEAL BEFORE TH E CIT(A) CONTENDING THAT THE ASSESSEE HAS NEITHER CONCEALED THE PARTICULARS OF INCOME NOR FURNISHED INACCURATE PARTICULARS OF INCO ME. RELIANCE WAS PLACED UPON THE FOLLOWING DECISIONS: 1) PWC VS. CIT (2010) 25 TAXMAN.COM 400 (SC); 2) CIT VS. AJAY SINGH & CO. (2002) 253 ITR 630 (P&H) A ND 3) CIT VS. RELIANCE PETRO PRODUCTS (P) LTD. (2010) 189 TAXMAN 322 (SC). 5. CONSIDERING THE SAME THE CIT(A) CAME TO THE FOLL OWING CONCLUSION: 4. I HAVE CONSIDERED THE ISSUE AND THE SUBMISSION S MADE BY THE AR. REGARDING THE CST PAYABLE AS ON 31.03.2008 OF RS. 32,82,056/- , THE ASSESSEE FURNISHED PHOTO COPIES OF THE RECEIP TS FROM WHICH THE ITA NO. 1131/D/2013 PARSHANT GENERATOR CO. 3 AO DISALLOWED THE PAYMENTS MADE AFTER THE DUE DATE OF FILING RETURN I.E. 30.09.2008 U/S 43B OF THE ACT. DURING THE APP EAL PROCEEDINGS, THE ASSESSEE DEMONSTRATED THAT AN AMOUNT OF RS. 8.5 0 LACS WAS PAID BEFORE THE DUE DATE OF FILING RETURN AND ACCORDINGL Y RELIEF TO THIS EXTENT WAS GRANTED. IT IS NOT IN DISPUTE THAT THE PAYMENTS OF OUTSTANDING CST WERE NOT MADE. THE DISALLOWANCE AR OSE ONLY BECAUSE OF THE TIME LIMITATION OF PAYMENT I.E. BEFO RE THE DUE DATE OF FILING RETURN. THE PAYMENTS MADE AFTER THE DUE DAT E ARE ALLOWABLE AS DEDUCTION U/S 43B IN THE SUBSEQUENT ASSESSMENT Y EAR. IT HAS BEEN HELD IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS (P) LTD. (SUPRA) THAT CLAIM OF EXPENDITURE MADE BY THE ASSESSEE, WHI CH WAS NOT ACCEPTED OR ACCEPTABLE TO REVENUE, BY ITSELF WOULD NOT ATTRACT PENALTY U/S 271(1)(C). THE OTHER CASE LAWS RELIED UPON BY THE AR ALSO SUPPORT THIS RATIO. IN VIEW OF THE ABOVE, IT IS HELD THAT IT IS NOT A FIT CASE FOR LEVY OF PENALTY U/S 271(1)(C) AND AS S UCH IT IS DELETED AND THE GROUNDS OF APPEAL ARE ALLOWED. 6. AGGRIEVED BY THIS THE REVENUE IS IN APPEAL BEFOR E THE TRIBUNAL. 7. LD. SR. DR PLACES RELIANCE UPON THE PENALTY ORDE R. ON BEHALF OF THE ASSESSEE AN ADJOURNMENT HAD BEEN MOVED ON ACCOU NT OF A BEREAVEMENT IN THE FAMILY OF THE ASSESSEE. AFTER H EARING THE LD. SR. DR AND ON GOING THROUGH THE MATERIAL AVAILABLE ON RECO RD AND THE JUDGMENTS RELIED UPON NAMELY: THE DECISION OF THE APEX COURT IN THE CASE OF PWC VS. CIT CITED (SUPRA) AND CIT VS. RELIANCE PETROPRO DUCTS P. LTD. CITED (SUPRA) IN THE FACTS AS THEY STAND WHICH HAVE NOT B EEN ASSAILED BY THE REVENUE WE FIND NO GOOD REASON TO INTERFERE WITH TH E FINDING ARRIVED AT AS ADMITTEDLY THERE WAS NEITHER ANY CONCEALMENT NOR AN Y FURNISHING OF INACCURATE PARTICULARS. BEING SATISFIED WITH THE R EASONING AND FINDING THE DEPARTMENTAL APPEAL IS DISMISSED. ITA NO. 1131/D/2013 PARSHANT GENERATOR CO. 4 8. THE SAID ORDER WAS PRONOUNCED IN THE COURT AFTER HEARING THE LD. SR. DR AND CONSIDERING THE PETITION OF THE ASSESSEE S SEEKING TIME. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. THE PRONOUNCEMENT IN THE OPEN COURT ON 29 TH AUGUST 2014. SD/- SD/- (J.S. REDDY) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29.08.2014 *KAVITA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR ITA NO. 1131/D/2013 PARSHANT GENERATOR CO. 5