Gujarat State Road Transport Corpn. Ltd., Ahmedabad V. The ACIT., Circle-4, Ahmedabad

ITA 1178/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1662 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-04-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 26-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER ./ ITA NO. 1178/AHD/2013 FOR ASSTT.YEAR : 2005-06 GUJARAT STATE ROAD TRANSPORT CORPN. CENTRAL WORKSHOP NARODA PATIA NARODA, AHMEDABAD (PAN: AAACG 5587 H VS DY.CIT CIRCLE-4 AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI SUNIL TALATI, CA REVENUE BY : SHRI ASHISH POPHARE, SR.DR / DATE OF HEARING : 25/04/2016 / DATE OF PRONOUNCEMENT: 11/05/2016 / O R D E R PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-VIII, AHMEDABA D DATED 08/02/2013 FOR ASSESSMENT YEAR 2005-06. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- 2.1. ASSESSEE IS A CORPORATION OF GOVERNMENT OF GUJ ARAT PROVIDING TRANSPORT AND OTHER ALLIED SERVICES. ASSESSEE FILE D ITS ORIGINAL RETURN OF INCOME DECLARING TOTAL LOSS OF RS.35,51,88,507/-. THEREAFTER, ASSESSEE FILED ITS REVISED RETURN DECLARING A LOSS OF RS.93,16,88,230/ -. THE CASE WAS SELECTED ITA NO.1178/AHD/2013 GUJ.STATE ROAD TRANSPORT CORPN. VS. DCIT FOR AY 2005-06 2 FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAMED U/S.143(3) OF THE ACT VIDE ORDER DATED 14/12/2007 AND THE TOTAL LOSS, BEFORE S ET OFF OF BUSINESS LOSS OF EARLIER YEARS, WAS DETERMINED AT RS.52,20,15,555/- BY MAKING VARIOUS ADDITIONS/DISALLOWANCES INCLUDING ADDITION OF RS.4 ,39,81,000/- ON ACCOUNT OF NON-ACCOUNTING OF DISCOUNT RECEIVABLE FROM INDIAN O IL CORPORATION (IOC). ON THE AFORESAID ADDITION MADE ON ACCOUNT OF DISCOU NT RECEIVABLE, AO VIDE ORDER DATED 30/03/2011 HELD THAT THE ASSESSEE HAD F URNISHED INACCURATE PARTICULARS AND HAD MADE WRONG AND EXCESS CLAIM OF EXPENDITURE AND WAS THEREFORE LIABLE FOR PENALTY U/S.271(1)(C) OF THE A CT AND, ACCORDINGLY, LEVIED PENALTY OF RS.1,60,93,748/-. AGGRIEVED BY THE ORD ER OF THE AO, ASSESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A), WHO CONFIR MED THE PENALTY LEVIED BY THE AO VIDE ORDER DATED 08/02/0213. AGGRIEVED BY THE AFORESAID ORDER OF THE LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED FOLLOWING GROUNDS:- YOUR APPELLANT BEING AGGRIEVED BY THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-VIII, AHMEDABA D IN APPEAL AGAINST ORDER U/S. 271(1)(C) OF THE INCOME TAX ACT PRESENTS THIS APPEAL AGAINST THE SAME ON THE FOLLOWING AMONGST OTHER GROUNDS. 1. THE LEARNED C.I.T. (APPEALS) HAS ERRED IN CONFIRMING THE LEVY OF PENALTY OF RS. 160,93,748/- U/S. 271(1)(C) OF THE INCOME TA X ACT. IT IS SUBMITTED THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, PENALTY IS NOT LEVIABLE AS THERE WAS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTIES AND THE PENALTY LEVIED OF RS. 160,93,748/-BE DELETED. 2 . THE LEARNED C.I.T. (APPEALS) FAILED TO APPRECI ATE THAT ALL FACTS WERE FURNISHED & NOTHING WAS WITHHELD FROM KNOWLEDGE OF ASSESSING OFFICER. THERE WAS NO MALAFIDE IN NOT SHOWING DISCOUNT RECEIVABLES FROM IOC IN THE YEAR UNDER CONSIDERATION & THAT TOO BECAUSE OF GENUINE G ROUNDS. IT BE SO HELD NOW AND PENALTY BE DELETED. 3. THE ORDER PASSED BY THE LEARNED C.I.T. (APPEA LS) IS BAD IN LAW AND CONTRARY TO THE PROVISIONS OF LAW AND FACTS. IT IS SUBMITTED THAT THE SAME BE HELD SO NOW. ITA NO.1178/AHD/2013 GUJ.STATE ROAD TRANSPORT CORPN. VS. DCIT FOR AY 2005-06 3 4. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER A ND/OR TO AMEND ALL OR ANY OF THE GROUNDS BEFORE THE FINAL HEARING. 3. BEFORE US, THE AR SUBMITTED THAT THOUGH ASSESSEE HAS RAISED VARIOUS GROUNDS, BUT THE SOLITARY ISSUE IN THE PRESENT APPE AL IS WITH RESPECT TO LEVY OF PENALTY U/S.271(1)(C) OF THE ACT. 4. BEFORE US, LD.AR REITERATED THE SUBMISSIONS AS W ERE MADE BEFORE THE AO AND LD.CIT(A) AND FURTHER SUBMITTED THAT AS PER THE AGREEMENT OF THE ASSESSEE WITH IOC, ASSESSEE WAS ENTITLED FOR SP ECIAL DISCOUNT ON RECEIPT OF CREDIT NOTES FROM IOC. HE SUBMITTED THAT SINCE TH E ASSESSEE DID NOT RECEIVE THE RELEVANT CREDIT-NOTES TILL THE YEAR END, THE S AME WAS NOT INCLUDED IN THE INCOME, BUT HOWEVER, SUBSEQUENTLY, WHEN THE CREDIT NOTES WERE RECEIVED IN F.Y. 2006-07, THE AMOUNT WAS INCLUDED IN THE INCOM E IN FY 2006-07 RELEVANT TO AY 2007-08. HE FURTHER SUBMITTED THAT THE NON-A CCOUNTING OF DISCOUNT IN THE YEAR UNDER CONSIDERATION WAS NOT ON ACCOUNT OF ANY MALAFIDE INTENTION MORE SO, WHEN THE ASSESSEE IS A GOVERNMENT CORPORA TION AND HAS BROUGHT FORWARD LOSSES AND THAT ASSESSEE WOULD NOT GAIN ANY THING FINANCIALLY BY NOT INCLUDING THE DISCOUNT IN THE YEAR UNDER CONSIDERAT ION. IN SUPPORT OF HIS CONTENTION, THAT THE AFORESAID DISCOUNT HAS BEEN AC COUNTED FOR IN SUBSEQUENT YEAR, HE PLACED ON RECORD THE RELEVANT EVIDENCES. HE FURTHER SUBMITTED THAT THE ASSESSEE HAS NEITHER FURNISHED ANY INACCURATE P ARTICULARS OF INCOME NOR HAS CONCEALED ANY INCOME AND THAT THE ASSESSEE HAS DISCLOSED ALL THE MATERIAL FACTS AND THERE WAS NO CONCEALMENT OF INCOME. HE A LSO PLACED RELIANCE ON THE JUDGEMENT OF THE HONBLE APEX COURT RENDERED IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT.LTD. REPORTED AT (2010) 322 ITR 0158 (SC). 4.1. THE LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHO RITIES BELOW. ITA NO.1178/AHD/2013 GUJ.STATE ROAD TRANSPORT CORPN. VS. DCIT FOR AY 2005-06 4 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW AS WELL AS THE JUDGEMENT RELIED UPON BY THE LD.COUNSEL FOR THE ASS ESSEE. THE ISSUE IN THE PRESENT APPEAL IS WITH RESPECT TO LEVY OF PENALTY U /S.271(1)(C) OF THE ACT ON THE DISCOUNT FROM IOC THAT WAS NOT ACCOUNTED BY THE ASSESSEE. BEFORE US, IT WAS CONTENDED THAT THE AMOUNT WAS NOT ACCOUNTED IN THE BOOKS OF ACCOUNT AS THE ASSESSEE HAD NOT RECEIVED THE RELEVANT CREDIT N OTES FROM IOC IN THE ACCOUNTING YEAR, BUT THE SAME WAS ACCOUNTED AND OFF ERED TO TAX IN SUBSEQUENT ASSESSMENT YEARS. THE AFORESAID SUBMISSION OF ASSE SSEE HAS NOT BEEN CONTROVERTED BY THE REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. IT IS A SETTLED LAW THAT THE PENALTY AND ASSESSMENT PROCE EDINGS ARE DIFFERENT PROCEEDINGS. FOR LEVY OF PENALTY APART FROM FALSIT Y OF THE EXPLANATION GIVEN BY THE ASSESSEE, THE DEPARTMENT MUST HAVE BEFORE IT COGENT MATERIAL OR EVIDENCE FROM WHICH IT COULD BE INFERRED THAT THE A SSESSEE HAS CONCISELY CONCEALED THE PARTICULARS OF INCOME OR HAD DELIBERA TELY FURNISHED INACCURATE PARTICULARS OF INCOME. IT IS WELL SETTLED THAT TH E PARAMETERS OF JUDGING THE JUSTIFICATION FOR ADDITION MADE IN THE ASSESSMENT C ASE OF THE ASSSESSEE IS DIFFERENT FROM THE PENALTY IMPOSED ON ACCOUNT OF CO NCEALMENT OF INCOME OR FILING INACCURATE PARTICULARS OF INCOME AND THAT CE RTAIN DISALLOWANCE/ADDITION COULD LEGALLY BE MADE IN THE ASSESSMENT PROCEEDINGS ON THE PREPONDERANCE OF PROBABILITIES BUT NO PENALTY COULD BE IMPOSED U/S. 271(1)(C) OF THE ACT ON THE PREPONDERANCE OF PROBABILITIES AND REVENUE HAS TO P ROVE THAT THE CLAIM OF EXPENSES BY THE ASSESSEE WAS NOT GENUINE OR WAS INF LATED OR THE NON-INCLUSION OF INCOME WAS TO REDUCE ITS TAX LIABILITY. CONSIDE RING THE AFORESAID FACTS AND PECULIAR FACTS OF THE CASE, AND CONSIDERING THE FAC T THAT THE AMOUNT HAS BEEN OFFERED TO TAX IN SUBSEQUENT ASSESSMENT YEARS AND T HE ASSESSEE BEING A GOVERNMENT CORPORATION, WE ARE OF THE VIEW THAT IN THE PRESENT CASE NO CASE FOR LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT HAS B EEN MADE OUT. WE THUS ITA NO.1178/AHD/2013 GUJ.STATE ROAD TRANSPORT CORPN. VS. DCIT FOR AY 2005-06 5 DIRECT THE DELETION OF PENALTY U/S. 271(1)(C) OF TH E ACT. THUS, THE GROUND OF ASSESSEE IS ALLOWED. 6. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWE D. ORDER PRONOUNCED IN THE COURT ON 11 MAY, 2016 AT AHMEDABAD. SD/- SD/- (S.S. GODARA) JUDICIAL MEMBER (ANIL CHATURVEDI ACCOUNTANT MEMBER AHMEDABAD; DATED 11 /05/2016 !..,.$../ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. &' / THE APPELLANT 2. ()&' / THE RESPONDENT. 3. ** + / CONCERNED CIT 4. + ( ) / THE CIT(A)-VIII, AHMEDABAD 5. ./0($$ , , / DR, ITAT, AHMEDABAD 6. 0123 / GUARD FILE. / BY ORDER, E COPY// //TRUE COPY// / ( DY./ASSTT.REGISTRAR) ' #$%, / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 25.4.16 .DICTATION-PAD 8 PAGES ATTACHED WITH THIS FILE 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . .5..5.16 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 11.5.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11.5.16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER