ADIT, Dehradun V. G & T Resources Europe Ltd., New Delhi

ITA 1284/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97307 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 22-09-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 05-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASUNATHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER AND SHRI C.M. GARG : JUDICIAL MEMBER ITA NO. 1284/DEL/2013 ASSTT. YR: 2005-06 ADIT, INTERNATIONAL TAXATION, VS. G & T RESOURES EU ROPE LTD., DEHRADUN. F-04 & 05, TRIVENI COMMERCIAL COMPLEX, SHEIKH SARAI, PHASE-I, NEW DELHI. PAN: AABCG9877 F ( APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI T. VASUNATHAN SR. DR RESPONDENT BY : NONE DATE OF HEARING : 23/07/2015. DATE OF ORDER : 24/09/2015. O R D E R PER S.V. MEHROTRA, A.M: THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAI NST THE ORDER DATED 18-12-2012 PASSED BY THE LD. CIT(APPEALS)-II, NEW DELHI IN APPEAL NO. 23/CIT(A)-II/2012-13, CANCELLING THE PENALTY LEVIE D U/S 271(1)(C) OF THE ACT, RELATING TO ASSTT. YEAR 2005-06. 2. NONE PUT IN APPEARANCE ON BEHALF OF THE ASSESSEE AT THE HARING DESPITE PERSONAL KNOWLEDGE OF THE DATE OF HEARING. WE PROCE ED TO DISPOSE OF THE DEPARTMENTAL APPEAL, EX PARTE, QUA THE ASSESSEE, ON MERITS AND IN THAT PROCESS WE HAVE HEARD LD. DR AND PERUSED THE RECORD OF THE CASE. 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSMENT FOR THE ASSESSMENT YEAR IN QUESTION WAS COMPLETED AT TOTAL INCOME OF RS. 45 ,98,920/- AS AGAINST RETURNED INCOME OF RS. 9,58,778/-, TREATING GROSS R ECEIPTS DEEMED PROFIT @ 10% U/S 44BB OF THE INCOME-TAX ACT, 1961. THE ASSES SEE HAD FILED RETURN DECLARING INCOME AT 1% OF GROSS RECEIPT OF RS. 4,04 ,45,999/- TOWARDS SALES OF SPARS FOR TAXATION AND HAD FILED RECEIPTS ON ACCOUN T OF REPAIR/ REVAMP AS TAXABLE U/S 44BB AT 10% DEEMED PROFIT RATE. FINAL A SSESSMENT WAS COMPLETED IN PURSUANT TO DRP DIRECTION ON GROSS REV ENUE ON BOTH THE COUNTS @ 10%. THE AO LEVIED PENALTY OF RS. 15,22,307/-, IN TER ALIA, OBSERVING THAT ASSESSEE HAD GIVEN CONSENT TO BE TAXED U/S 44BB IN RESPECT OF ENTIRE INCOME FROM CONTRACTS. 4. LD. CIT(A) DELETED THE PENALTY AFTER NOTING THE FOLLOWING THE SUBMISSIONS: 5.0 GROUNDS 2 TO 4 CHALLENGE THE LEVY OF PENALTY THROUGH THE FOLLOWING SUBMISSIONS:- 'THE A.O. HAS NOWHERE DETECTED THE CONCEALMENT OF I NCOME NOR HAS HE DETECTED THAT THE ASSESSEE HAD FURNISHED INA CCURATE PARTICULARS OF INCOME. THE ASSESSEE'S AGREEING WITH THE DRP FOR TAXING OF THE RECEIPTS FROM REPAIR/REVAMP AT DEEMED PROFIT RATE OF 1 0% UNDER SECTION 44BB IS ONLY A PRAGMATIC VIEW FOR PURCHASING PEACE WITH THE DEPARTMENT AND TO AVOID L ITIGATION ON THIS ISSUE. WHEN THE ENTIRE RECEIPTS ARE DISCLOSED TO THE DEPARTMENT AND ALSO ONCC ITSELF HAS DEDUCTED THE TD S @1% ON THE SALE OF THE SPARES AS PER ORDER UNDER SECTIO N 195(2) ISSUED BY THE INCOME TAX DEPARTMENT IT CANNOT BE VI EWED THAT THERE WAS EITHER CONCEALMENT OF INCOME OR FURNISHIN G OF INACCURATE PARTICULARS OF INCOME. WHAT THE ASSESSEE HAD SHOWN IN THE RETURN OF INCOME WAS A VIEW POSSIBLE WHEREAS THE VIEW OF THE DRP ACCEPTED BY THE ASSESSEE WAS ALSO A POSSIBL E VIEW ON 3 THE SAME SET OF FACTS. HENCE, THE PENALTY IMPOSED B Y THE A.O. IS BAD IN LAW AND IS NOT MAINTAINABLE. IT DESERVES TO BE CANCELLED. 5.1 IT IS CLEAR THAT THE APPELLANT WAS GUIDED BY TH E ORDER U/S 195(2) OF THE ACT TO OFFER HIS INCOME FOR TAX IN A PARTICULAR MANNER. IT IS ANOTHER MATTER THAT AT THE ASSESSMENT STAGE THE SAME WAS ENHANCED. THERE IS CLEARLY NO CASE OF PENA LTY U/S 271 (1)( C) OF THE ACT MADE OUT AND THE LEVIED PENALTY IS ACCORDINGLY DELETED. 6. HAVING HEARD LD. DR WE DO NOT FIND ANY REASON T O INTERFERE WITH THE ORDER OF LD. CIT(A) BECAUSE THE ENTIRE RECEIPTS WER E DISCLOSED TO THE DEPARTMENT AND ALSO ONGC ITSELF HAD DEDUCTED THE TA X @ 1% ON THE SALE OF THE SPARES AS PER ORDER U/S 195(2) ISSUED BY THE IN COME-TAX DEPARTMENT. IN VIEW OF ABOVE, THE DEPARTMENTAL APPEAL IS LIABLE TO BE DISMISSED. 7. IN THE RESULT REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 24/09/2015.. SD/- SD/- (C.M. GARG) (S.V. MEHROTRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24/09/2015. *MP* COPY OF ORDER TO: 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. 4 - + DATE INITIAL 1. DRAFT DICTATED ON 23 - 0 9 .2015 PS 2. DRAFT PLACED BEFORE AUTHOR 24 .0 9 .2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.