Income Tax Officer, Ward-6(1)(3), Bangalore V. M/s Sri Maruthi Power Gen India Pvt Ltd, Bangalore

ITA 1757/BANG/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4617 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 31-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PADMA MEENAKSHI
• Assessee Lawyers: R E BALASUBRAMANYAM
• Section: 115JB; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO S . 1757 & 1758 / BANG/201 7 ASSESSMENT YEAR S : 2009 - 10 & 20 1 0 - 1 1 THE INCOME TAX OFFICER, WARD 6 (1) (3), BANGALORE. VS. M/S. SRI MARUTHI POWER GEN INDIA PVT. LTD., 22/4, RACE COURSE ROAD, GANDHINAGAR, BANGALORE 560 009. PAN: AAFCS0312R APPELLANT RESPONDENT APPELLANT BY : SMT. PADMA MEENAKSHI, JCIT (DR) RESPONDENT BY : SHRI R.E. BALASUBRAMANYAM, CA DATE OF HEARING : 0 7 .0 6 .2018 DATE OF PRONOUNCEMENT : 15 .0 6 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THESE TWO APPEALS ARE FILED BY THE REVENUE WHICH AR E DIRECTED AGAINST A COMBINED ORDER OF LD. CIT(A)-6, BANGALORE DATED 16. 06.2017 FOR ASSESSMENT YEARS 2009-10 & 2010-11. BOTH THESE APPEALS WERE H EARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR T HE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED BY THE REVENUE IN THESE APPEA LS ARE IDENTICAL AND THEREFORE, WE REPRODUCE GROUNDS RAISED FOR ASSESSMENT YEAR 200 9-10 IN ITA NO. 1757/BANG/2017. THE SAME ARE AS UNDER. 1. THE ORDER OF THE CIT (APPEALS) IS OPPOSED TO LAW AND THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT (A) FAILED TO APPRECIATE THE FACT THAT EXPLANATION TO THE SECT ION 115JB SPECIFICALLY MENTIONS THE PARTICULARS TO ADDED AND REDUCED FROM 'NET PROFIT' TO ARRIVE AT THE BOOK PROFIT AND REDUCTION OF DEDUCTION U/S 80IA OF THE I.T ACT DOES NOT FIND ANY PLACE IN THAT EXPL ANATION. ITA NOS. 1757 & 1758/BANG/2017 PAGE 2 OF 3 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT (A) ERRED IN LAW IN HOLDING THAT THE ACTION OF ASSESSEE DOES NOT TANTAMOUNT TO CONCEALMENT OR FURNISHING INACCURATE PARTICULARS EV EN WHEN THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS BY DE BITING DEDUCTION U/S 80IA OF THE I.T ACT FOR COMPUTATION OF BOOK PRO FIT U/S 115JB OF THE I.T ACT EVEN THOUGHT THERE IS NO SPECIFIC PROVISION TO DO SO IN INCOME TAX ACT. 4. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URG ED AT THE TIME OF HEARING, IT IS HUMBLY PRAYED THAT THE ORDER OF THE CIT(A) IN SO FAR AS IT RELATES TO THE ABOVE GROUNDS MAY BE REVERSED AND TH AT OF THE ASSESSING OFFICER BE RESTORED. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL. 3. THE LD. DR OF REVENUE SUPPORTED THE ASSESSMENT O RDER WHEREAS THE LD. AR OF ASSESSEE SUPPORTED THE ORDER OF CIT (A). HE ALSO S UBMITTED THAT ON PAGES 9 AND 11 OF PAPER BOOK ARE THE NOTICES ISSUED BY THE AO U/S. 274 R.W.S. 271 OF IT ACT FOR ASSESSMENT YEARS 2009-10 AND 2010-11 RESPEC TIVELY AND FROM THE SAME, IT CAN BE SEEN THAT THE AO HAS NOT MADE IT CL EAR AS TO WHETHER THE ASSESSEE IS GUILTY OF CONCEALMENT OF INCOME OR OF F URNISHING INACCURATE PARTICULARS OF INCOME. THEREAFTER, HE SUBMITTED A COPY OF A TRIBUNAL ORDER RENDERED IN THE CASE OF SRI A NAGARAJU VS. ITO IN I TA NO. 2196/BANG/2016 DATED 06.04.2018 AND PLACED RELIANCE ON IT. HE POIN TED OUT THAT IN THIS TRIBUNAL ORDER, THE TRIBUNAL HAS FOLLOWED THE JUDGMENT OF HO N'BLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF CIT VS. MANJUNATHA COTTON A ND GINNING FACTORY AS REPORTED IN (2013) 359 ITR 565 AND IT WAS HELD THAT THE PENALTY ORDER IS INVALID AND CONSEQUENTLY THE PENALTY WAS DELETED. HE SUBMI TTED THAT IN THE PRESENT CASE ALSO, THE ISSUE SHOULD BE DECIDED IN FAVOUR OF THE ASSESSEE ON SIMILAR LINE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND SIN CE IN THE PRESENT CASE, THE AO HAS NOT MADE IT CLEAR IN THE NOTICE ISSUED BY HI M U/S. 274 R.W.S. 271 OF IT ACT AS TO WHETHER THE ASSESSEE IS GUILTY OF CONCEAL MENT OF INCOME OR OF FURNISHING INACCURATE PARTICULARS OF INCOME, THE TR IBUNAL ORDER CITED BY LD. AR OF ASSESSEE RENDERED IN THE CASE OF SRI A NAGARAJU VS. ITO (SUPRA) AND IN TURN THE JUDGMENT OF HON'BLE KARNATAKA HIGH COURT RENDER ED IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY (SUPRA) ARE S QUARELY APPLICABLE AND RESPECTFULLY FOLLOWING THESE JUDGEMENTS, WE HOLD TH AT IN THE PRESENT CASE ALSO, ITA NOS. 1757 & 1758/BANG/2017 PAGE 3 OF 3 THE PENALTY ORDER PASSED BY AO IS INVALID AND AS A CONSEQUENCE, THE PENALTY IMPOSED BY AO STANDS DELETED. 5. IN THE RESULT, BOTH THE APPEALS FILED BY THE REV ENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (N.V. VASUDEVAN) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 15 TH JUNE, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.