The ITO, Ward-1(1), Guntur, Guntur V. M/s Kanyaka Parameswari Cold Storage Pvt. Ltd, Guntur

ITA 217/VIZ/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0113 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 18-11-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 01-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M NARAYANA RAO
• Keywords: Bonafide belief; Question of law; Wrong claim; Agreed addition
• Section: 80IB; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . . . . , . . . . , $ $ $ $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./ I.T.A.NO.217/VIZ/2012 ( / ASSESSMENT YEAR : 2006-07) ITO, WARD - 1(1), GUNTUR VS. M/S. KANYAKA PARAMESWARI COLD STORAGE PVT. LTD., 24-2-2/3, GT ROAD, R. AGRAHARAM, GUNTUR. [ PAN: AACCK 4473 A] ( & & & & / APPELLANT) ( '(& '(& '(& '(& / RESPONDENT ) & ) / APPELLANT BY : SRI M. NARAYANA RAO DR '(& ) / RESPONDENT BY : SRI G.V.N. HARI AR ) - / DATE OF HEARING : 18/11/2015 ) - / DATE OF PRONOUNCEMENT : 18 /12/2015 / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF CIT(A), GUNTUR DATED 30/01/2012 FOR THE A.Y. 2006-0 7. 2 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COMPANY, WHICH IS ENGAGED IN THE BUSINESS OF OPERATING AND MAINTENANC E OF COLD STORAGE 2 ITA NO.217/VIZ/2012 CHAIN FACILITY. THE ASSESSEE HAS FILED ITS RETURN OF INCOME FOR THE A.Y. 2006-07 AND CLAIMED DEDUCTION UNDER SEC. 80IB(11) O F THE ACT. DURING THE COURSE OF ASSESSMENT, THE ASSESSING OFFICER DEN IED THE BENEFIT OF DEDUCTION CLAIMED BY THE ASSESSEE ON THE GROUND THA T THE COLD STORAGE PLANT OPERATED BY THE ASSESSE DOES NOT COME UNDER T HE DEFINITION OF COLD STORAGE FACILITY WITHIN THE MEANING OF 80IB( 11) OF THE ACT. AGAINST THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED AN APP EAL BEFORE THE CIT(A). THE CIT(A), ALLOWED THE BENEFIT OF DEDUCTI ON TO THE INCOME OF ONE COLD STORAGE FACILITY, OUT OF TWO CHAMBERS OPER ATED BY THE ASSESSEE. THE CIT(A), WHILE GRANTING RELIEF HELD THAT THE ASS ESSEE IS OPERATING A COLD STORAGE FACILITY WHICH IS ELIGIBLE FOR DEDUCTI ON UNDER SEC. 80IB(11) OF THE ACT. HOWEVER, THE ASSESSEE HAS STARTED ITS OPE RATIONS IN RESPECT OF FIRST COLD STORAGE BEFORE 31/03/2004, THEREFORE, EL IGIBLE FOR DEDUCTION UNDER SEC. 80IB(11) OF THE ACT. AS FAR AS SECOND C OLD STORAGE FACILITY IS CONCERNED, IT COMMENCED ITS OPERATIONS ON OR AFTER 01/04/2004, THEREFORE, DEDUCTION PROVIDED UNDER SEC. 80IB(11) O F THE ACT IS NOT AVAILABLE TO THE UNITS WHICH STARTS OR COMMENCED IT S OPERATIONS ON OR AFTER 01/04/2004. 3 . THEREAFTER, THE ASSESSING OFFICER INITIATED PENAL TY PROCEEDINGS UNDER SEC. 271(1)(C) OF THE ACT ON THE SAID DISALLO WANCE OF CLAIM OF DEDUCTION UNDER SEC. 80IB OF THE ACT. THE ASSESSIN G OFFICER WAS OF THE 3 ITA NO.217/VIZ/2012 OPINION THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF INCOME AND ALSO FURNISHED INACCURATE PARTICULARS OF INCOME. THEREF ORE, THIS IS A FIT CASE FOR LEVY OF PENALTY UNDER SEC. 271(1)(C) OF THE ACT . BEFORE THE ASSESSING OFFICER, THE ASSESSEE CONTENDED THAT NEIT HER IT CONCEALED THE PARTICULARS OF ITS INCOME NOR FURNISHED INACCURATE PARTICULARS OF INCOME, AS THE CLAIM OF DEDUCTION UNDER SEC. 80IB(11) WAS BONAFIDE BECAUSE, THE UNIT IS ALREADY COMMENCED ITS OPERATIONS BEFORE 31/03/2004. THE ASSESSEE FURTHER SUBMITTED THAT THE SECOND COLD STO RAGE FACILITY IS ONLY AN EXTENSION OF EXISTING COLD STORAGE FACILITY, WHI CH WAS COMMENCED ITS OPERATIONS BEFORE 31/03/2004, THEREFORE, THE ASSESS EE UNDER BONAFIDE BELIEF, CLAIMED DEDUCTION UNDER SEC. 80IB(11) OF TH E ACT. HOWEVER, THE ASSESSING OFFICER REJECTED THE EXPLANATION OFFERED BY THE ASSESSEE AND LEVIED PENALTY U/S 271(1)( C) OF THE ACT. WHILE DOI NG SO, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE DELIBERATELY CLA IMED THE DEDUCTION, KNOWING IT FULLY THAT THE SECOND COLD STORAGE FACIL ITY WAS NOT COMMENCED ITS OPERATION BEFORE 01/04/2004. THEREFORE, IT AMOU NTS TO CONCEALMENT OF PARTICULARS OF INCOME AND ALSO FURNISHING INACCU RATE PARTICULARS OF INCOME WHICH ATTRACTS THE PENALTY UNDER SEC. 271(1) (C) OF THE ACT AND ACCORDINGLY, LEVIED PENALTY OF RS. 7,16,119/-. 4 . AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE P REFERRED AN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A) THE AS SESSEE CONTENDED 4 ITA NO.217/VIZ/2012 THAT THE ASSESSING OFFICER WAS NOT RIGHT IN LEVYING PENALTY BY HOLDING THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF INCO ME AND ALSO FURNISHED INACCURATE PARTICULARS OF INCOME, AS THE CLAIM OF D EDUCTION UNDER SEC. 80IB(11) WAS BONAFIDE . THE ASSESSEE FURTHER SUBMITTED THAT IT WAS STARTED ITS OPERATION MUCH BEFORE 31/03/2004 AND TH E SECOND COLD STORAGE FACILITY IS ONLY AN EXTENSION OF EXISTING C OLD STORAGE FACILITY. THE ASSESSEE FURTHER SUBMITTED THAT THE CLAIM OF DEDUCT ION UNDER SEC. 80IB(11) WAS MADE ON THE EXPERT ADVICE OF CHARTERED ACCOUNTANT, WHO HAS ISSUED A REPORT IN FORM NO. 10CCB AND CERTIFIED THAT THE CLAIM OF DEDUCTION UNDER SEC. 80IB WAS IN ACCORDANCE WITH LA W. THEREFORE, IT CANNOT BE HELD THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOM E. THE CIT(A), AFTER CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE , DELETED THE PENALTY LEVIED BY THE ASSESSING OFFICER. AGGRIEVED BY THE CIT(A)S ORDER, THE REVENUE IS IN APPEAL BEFORE US. 5 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MAT ERIALS AVAILABLE ON RECORD. THE PROVISIONS OF SEC. 271(1) (C) OF THE ACT ENVISAGED IMPOSITION OF PENALTY, IN CASE WHERE THE INGREDIENTS OF TWO CONDITIONS NAMELY CONCEALMENT OF INCOME OR FURNISHI NG INACCURATE PARTICULARS OF INCOME ARE TO BE FULFILLED. THERE I S NO JUSTIFICATION FOR LEVY OF PENALTY UNDER SEC. 271(1)(C) OF THE ACT IN EACH CASE, WHERE THE 5 ITA NO.217/VIZ/2012 ADDITIONS HAS BEEN MADE TO THE RETURNED INCOME OF T HE ASSESSEE WHILE COMPLETING THE ASSESSMENT. IN THIS CASE, THE ASSES SING OFFICER LEVIED PENALTY ON THE AMOUNT DISALLOWED UNDER SEC. 80IB(11 ) OF THE ACT. THE ASSESSING OFFICER DISALLOWED THE AMOUNT ON THE GROU ND THAT THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION UNDER SEC. 8 0IB(11), AS THE COLD STORAGE FACILITY OPERATED BY IT WAS NOT ELIGIBLE FO R DEDUCTION UNDER SEC. 80IB(11) OF THE ACT. ON APPEAL, THE CIT(A) HAS ALL OWED THE PARTIAL DEDUCTION TOWARDS ONE COLD STORAGE FACILITY OPERATE D BY THE ASSESSEE BY HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER SEC. 80IB(11), AS IT IS OPERATING COLD STORAGE FACILITY, BUT DENIE D THE BENEFIT OF DEDUCTION FOR THE SECOND COLD STORAGE FACILITY, ON THE GROUND THAT IT IS NOT COMMENCED ITS OPERATIONS ON OR BEFORE 31/03/200 4. FROM THE FACTS OF THE PRESENT CASE, IT IS VERY CLEAR THAT THE ASSE SSEE IS IN THE BUSINESS OF OPERATING AND MAINTENANCE OF COLD STORAGE FACILI TY WHICH IS ELIGIBLE ACTIVITY FOR CLAIMING DEDUCTION UNDER SEC. 80IB(11) OF THE ACT. THE ONLY ISSUE WHICH NEEDS TO BE EXAMINED WHETHER THE ASSESS EE HAS COMMENCED ITS OPERATIONS ON OR BEFORE THE SPECIFIED DATE MENTIONED IN THE SAID SECTION TO BE ELIGIBLE FOR CLAIMING DEDUCT ION. IN THE INSTANT CASE, ON PERUSAL OF THE FACTS IT WAS ABUNDANTLY CLE AR THAT THE ASSESSEE WAS STARTED OPERATION OF COLD STORAGE FACILITY MUCH BEFORE THE DUE DATE SPECIFIED UNDER THE ACT IN RESPECT OF FIRST COLD ST ORAGE FACILITY, BUT IT HAS 6 ITA NO.217/VIZ/2012 COMMENCED ITS OPERATIONS ONLY AFTER 01/04/2004 IN R ESPECT OF SECOND COLD STORAGE FACILITY. THE ASSESSEE CONTENDED THAT ITS CLAIM OF DEDUCTION UNDER SEC. 80IB(11) WAS BONAFIDE AND WHICH WAS ON THE EXPERT ADVICE OF THE CHARTERED ACCOUNTANT, WHO HAS CERTIFIED THE ELIGIBILITY OF DEDUCTION UNDER SEC. 80IB(11) AND ISSUED REPORT IN FORM 10CCB. THEREFORE, IT CANNOT BE CONSIDERED AS CONCEALMENT O F PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCO ME, SO AS TO IMPOSE PENALTY U/S 271(1)( C) OF THE ACT. 6 . NOW THE QUESTION ARISES AS TO WHETHER THE DISALLO WANCE OF CLAIM OF DEDUCTION UNDER SEC. 80IB WOULD BE EXIGIBLE FOR LEV Y OF PENALTY UNDER SEC. 271(1)(C) OF THE ACT. IT IS WELL SETTLED PROP OSITION OF LAW THAT EACH AND EVERY ASSESSMENT PROCEEDINGS WOULD NOT AUTOMATI CALLY GIVE RAISE TO LEVY OF PENALTY. DURING THE COURSE OF PENALTY PROC EEDINGS, THE EXPLANATION OF THE ASSESSEE HAS TO BE EXAMINED INDE PENDENTLY WITHOUT BEING INFLUENCED BY THE EXPLANATIONS TAKEN DURING T HE COURSE OF ASSESSMENT PROCEEDINGS. THOUGH, THE FINDINGS RECOR DED IN THE ASSESSMENT ORDER CONSTITUTE GOOD EVIDENCE IN PENALT Y PROCEEDINGS, BUT THOSE FINDINGS CANNOT BE REGARDED AS CONCLUSIVE WHI LE DEALING WITH THE PENALTY PROCEEDINGS. WHEN THE EXPLANATION OFFERED B Y THE ASSESSEE APPEARS TO BE REASONABLE, THEN, THE QUESTION OF LEV Y OF PENALTY WOULD NOT ARISE. IN THE INSTANT CASE, THE ASSESSEE HAS M ADE OUT HIS CASE THAT 7 ITA NO.217/VIZ/2012 WRONG CLAIM/DEDUCTION UNDER SEC. 80IB WOULD NOT AUT OMATICALLY BECOME CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. WE FIND FORCE IN THE ARGUMENTS OF THE A SSESSEE FOR THE REASON THAT THE ASSESSEE HAS DISCLOSED ALL PRIMARY FACTS RELATING TO CLAIM OF DEDUCTION UNDER SEC. 80IB(11) BEFORE THE ASSESSI NG OFFICER. THE ASSESSING OFFICER WAS OF THE OPINION THAT THE ASSES SEE IS NOT ELIGIBLE FOR DEDUCTION UNDER SEC. 80IB OF THE ACT FOR THE REASON THAT THE FACILITY OPERATED BY THE ASSESSEE IS NOT IN ACCORDANCE WITH THE SCHEME OF SEC. 80IB(11) OF THE ACT. THE ISSUE OF ALLOWABILITY OF DEDUCTION UNDER SEC. 80IB(11) IS PURELY A QUESTION OF LAW AND ALSO HIGHL Y DEBATABLE ISSUE WHERE ALWAYS TWO VIEWS ARE POSSIBLE. JUST BECAUSE, THE ASSESSING OFFICER DID NOT ACCEPT THE VIEW EXPRESSED BY THE AS SESSE, IT DID NOT AMOUNTS TO CONCEALMENT OF INCOME OR FURNISHING INAC CURATE PARTICULARS OF INCOME. 7 . THE ASSESSEE RELIED UPON THE HON'BLE SUPREME COUR TS JUDGMENT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS (P) LTD. REPORTED IN 322 ITR 158. THE HON'BLE APEX COURT, IN THE SAID CASE, LAID DOWN THE LAW THAT NO PENALTY UNDER SEC. 271(1)(C) OF THE ACT IS LEVIABLE FOR MERELY DISALLOWING INCORRECT CLAIM MADE BY THE ASSESSE AND ALSO IT DOES NOT AMOUNT TO CONCEALMENT OF PARTICULARS OF INCOME OR F URNISHING INACCURATE PARTICULARS OF INCOME. THE RELEVANT PORTION IS REP RODUCED HEREINUNDER:- 8 ITA NO.217/VIZ/2012 A GLANCE AT THE PROVISION OF S. 271(1)(C) WOULD SUG GEST THAT IN ORDER TO BE COVERED, THERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY , THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICULARS OF HIS I NCOME. PRESENT IS NOT THE CASE OF CONCEALMENT OF THE INCOM E. THAT IS NOT THE CASE OK THE REVENUE EITHER. AS PER LAW LEXI CON, THE MEANING OF THE WORD 'PARTICULAR' IS A DETAIL OR DET AILS (IN PLURAL SENSE); THE DETAILS OF A CLAIM, OR THE SEPARATE ITE MS OF AN ACCOUNT. THEREFORE, THE WORD 'PARTICULARS' USED IN THE S. 271(1)(C) WOULD EMBRACE THE MEANING OF THE DETAILS OF THE CLAIM MADE. IT IS AN ADMITTED POSITION IN THE PRESENT CAS E THAT NO INFORMATION GIVEN IN THE RETURN WAS FOUND TO BE INC ORRECT OR INACCURATE. IT IS NOT AS IF ANY STATEMENT MADE OR A NY DETAIL SUPPLIED WAS FOUND TO BE FACTUALLY INCORRECT. HENCE , AT LEAST, PRIMA FACIE, THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. THE WORDS ARE PLAIN AND SIM PLE. IN ORDER TO EXPOSE THE ASSESSEE TO THE PENALTY UNLESS THE CA SE IS STRICTLY COVERED BY THE PROVISION, THE PENALTY PROV ISION CANNOT BE INVOKED. BY ANY STRETCH OF IMAGINATION, MAKING A N INCORRECT CLAIM IN LAW CANNOT TANTAMOUNT TO FURNISHING INACCU RATE PARTICULARS. THEREFORE, IT IS OBVIOUS THAT IT MUST BE SHOWN THAT THE CONDITIONS UNDER S. 271(1)(C) MUST EXIST BEFORE THE PENALTY IS IMPOSED. THERE CAN BE NO DISPUTE THAT EVERYTHING WO ULD DEPEND UPON THE RETURN FILED BECAUSE THAT IS THE ONLY DOCU MENT, WHERE THE ASSESSEE CAN FURNISH THE PARTICULARS OF HIS INC OME.CIT VS. ATUL MOHAN BINDAL (2009) 225 CTR (SC) 248 : (2009) 28 DTR (SC) 1 : (2009) 9 SCC 589 FOLLOWED . (PARAS 7 & 8) READING THE WORDS 'INACCURATE' AND 'PARTICULARS' IN CONJUNCTION, THEY MUST MEAN THE DETAILS SUPPLIED IN THE RETURN, WHICH ARE NOT ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDING TO TR UTH OR ERRONEOUS. IN THIS CASE, THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN WERE FOUND TO BE INCORRECT O R ERRONEOUS OR FALSE. SUCH NOT BEING THE CASE, THERE WOULD BE NO Q UESTION OF INVITING THE PENALTY UNDER S. 271(1)(C). A MERE MAK ING OF THE CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH CLAIM MADE IN THE RETURN CANNOT AMOU NT TO THE INACCURATE PARTICULARS. THE ASSESSEE HAD FURNISHED ALL THE DETAILS OF ITS EXPENDITURE AS WELL AS INCOME IN ITS RETURN, WH ICH DETAILS, IN THEMSELVES, WERE NOT FOUND TO BE INACCURATE NOR COU LD BE VIEWED AS THE CONCEALMENT OF INCOME ON ITS PART. IT WAS UP TO THE 9 ITA NO.217/VIZ/2012 AUTHORITIES TO ACCEPT ITS CLAIM IN THE RETURN OR NO T. MERELY BECAUSE THE ASSESSEE HAD CLAIMED THE EXPENDITURE, WHICH CLA IM WAS NOT ACCEPTED OR WAS NOT ACCEPTABLE TO THE REVENUE, THAT BY ITSELF WOULD NOT ATTRACT THE PENALTY UNDER S. 271(1)(C). I F THE CONTENTION OF THE REVENUE IS ACCEPTED THEN IN CASE OF EVERY RE TURN WHERE THE CLAIM MADE IS NOT ACCEPTED BY AO FOR ANY REASON, TH E ASSESSEE WILL INVITE PENALTY UNDER S. 271(1)(C). THAT IS CLE ARLY NOT THE INTENDMENT OF THE LEGISLATURE. THE TRIBUNAL, AS WEL L AS, THE CIT(A) AND THE HIGH COURT HAVE CORRECTLY REACHED THIS CONC LUSION. SREE KRISHNA ELECTRICALS VS. STATE OF TAMIL NADU & ANR. (2009) 23 VST 249 (SC) APPLIED ; RELIANCE PETROPRODUCTS (P) LTD. (JUDGMENT DT. 23RD OCT., 2007 OF THE GUJARAT HIGH COURT IN TAX AP PEAL NO. 1149 OF 2007) AFFIRMED . (PARAS 9,10 & 12) 8 . THE ITAT, CHANDIGARH BENCH IN THE CASE OF M/S. CH IRAG INTERNATIONAL IN I.T.A.NO. 401/CHAND/2008 DATED 15/ 10/2008, HAD AN OCCASION TO CONSIDER THE ISSUE OF LEVY OF PENALTY F OR DISALLOWANCE OF CLAIM OF DEDUCTION U/S 80IB OF THE ACT. THE RELEVAN T PORTION IS REPRODUCED AS UNDER:- 'THE ASSESSEE HAD CLAIMED THAT PROFIT OF THE INDUS TRIAL UNDERTAKING TO THE EXTENT OF RS.11,90,348/- WAS ELIGIBLE FOR DE DUCTION UNDER SECTION 80IB . HENCE THE CLAIM OF DEDUCTION UNDER SECTION 80IB AT RS . 2 ,97,587/-. WHILE COMPUTING THE ELIGI BLE PROFITS THE ASSESSEE ALSO INCLUDED INCOME BY WAY OF EXPORT INCE NTIVES I.E. DUTY DRAWBACK. THIS CLAIM WAS NEGATIVED BY THE ASSE SSING OFFICER ON THE GROUND THAT INCOME BY WAY OF EXPORT INCENTIV ES WAS NOT ELIGIBLE FOR IT COULD NOT BE CONSTRUED AS AN INCOME DERIVED FROM THE INDUSTRIAL UNDERTAKING OF THE ASSESSEE. THE SAI D DENIAL HAS ALSO BEEN AFFIRMED BY THE CIT(A) AS WELL AS BY THE TRIBUNAL. THE PRESENT DISPUTE IS AS TO WHETHER THE CLAIM MADE IN THE RETURN OF INCOME COULD CONSTITUTE CONCEALMENT OF INCOME OR FU RNISHING INACCURATE PARTICULARS OF SUCH INCOME BY THE ASSESS EE WITHIN THE MEANING OF SECTION 271(1)(C) OF THE ACT. ACCORDING TO THE REVENUE THE DENIAL IS IN LINE WITH THE JUDGMENT OF THE HON' BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF LIBERTY INDIA (SU PRA) AND 10 ITA NO.217/VIZ/2012 THEREFORE THE ASSESSEE WILLFULLY CLAIMED A WRONG DE DUCTION IN THE RETURN OF INCOME. IN THIS CONNECTION WE FIND THAT A T THE TIME OF THE FILING OF RETURN ON 29.10.2003 THE JUDGMENT OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF LIBERTY INDIA ( SUPRA) WAS NOT AVAILABLE. THEREFORE IT COULD NOT BE SAID THAT THE ASSESSEE DELIBERATELY MADE ANY WRONG CLAIM IN THE RETURN OF INCOME. THE CLAIM MADE BY THE ASSESSEE IN THE RETURN WAS MADE O N A BONAFIDE BASIS. EVIDENTLY THE DECISION OF THE HON'BLE GUJARA T HIGH COURT IN THE CASE OF INDIA GELATINE & CHEMICALS LIMITED (SUP RA) DATED APRIL,2004 SUPPORTED THE CASE OF THE ASSESSEE. EVEN THE JURISDICTIONAL TRIBUNAL IN THE CASE OF PARAMOUNT IN DUSTRIAL CORPORATION 109 TTJ 295 (CHD) IN ITS ORDER DATED 31 .07.2006 HELD THAT RELIEF UNDER SECTION 80IB WAS AVAILABLE ON INCOME BY WAY OF DUTY DRAWBACK. NO DOUBT, THIS POSITION PREVAILED PR IOR TO THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CA SE OF LIBERTY INDIA LIMITED (SUPRA) 22.09.2006. HOWEVER, ON THE A BOVE BASIS, WE ARE ONLY SEEKING TO POINT OUT THAT THE CLAIM OF THE ASSESSEE MADE IN THE RETURN OF INCOME WAS NOT WILLFULLY WRON G. FURTHER IT CAN BE DEDUCED THAT THE ISSUE RELATING TO THE ALLOW ABILITY OF 80IB RELIEF ON INCOME BY WAY OF DUTY DRAWBACK IS DEBATAB LE. THIS CAN BE SEEN FROM THE CONFLICTING JUDGMENTS OF VARIOUS H IGH COURTS. THE DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH C OURT IN THE CASE OF LIBERTY INDIA (SUPRA) IS AGAINST THE ASSESS EE WHEREAS THE HON'BLE HIGH COURTS OF DELHI AND GUJARAT IN THE CAS E OF ELTEK SGS (P) LTD. (SUPRA) AND INDIA GELATINE & CHEMICALS LIM ITED (SUPRA) RESPECTIVELY ARE IN FAVOUR OF THE ASSESSEE. THE HON 'BLE SUPREME COURT HAS ALSO ADMITTED THE S.L.P. AND THUS THE ISS UE IS PENDING FOR FINAL ADJUDICATION BEFORE THE APEX COURT. FOR T HE ABOVE REASONS, IN OUR VIEW, THE ISSUE CANNOT BE SAID TO B E FREE FROM DEBATE. UNDER SUCH CIRCUMSTANCES, THE CLAIM MADE IN THE RETURN, THOUGH DENIED BY THE ASSESSING OFFICER, CANNOT BE C ONSTRUED AS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF SUCH INCOME SO AS TO ATTRACT PENALTY UNDER SECTION 271(1)(C) OF THE ACT. IT HAS BEEN HELD BY THE HON'BLE DELHI HIGH COU RT IN THE CASE OF H. M. A. UDYOG (P) LTD. (SUPRA) THAT REJECTION O F ASSESSEE'S CLAIM, WHICH WAS OF DEBATABLE NATURE, WOULD NOT ATT RACT PENALTY UNDER SECTION 271(1)(C) OF THE ACT. IN OUR CONSIDERED OPINION, HAVING REGARD TO THE FACT THAT THE CLAIM WAS MADE B Y THE ASSESSEE ON BONAFIDE CONSIDERATIONS AND BEING A DEBATABLE IS SUE, THE REJECTION OF THE SAME IN THE ASSESSMENT PROCEEDINGS DOES NOT AMOUNT TO CONCEALMENT OF INCOME OR FURNISHING OF IN ACCURATE PARTICULARS OF INCOME SO AS TO ATTRACT THE PENALTY UNDER SECTION 11 ITA NO.217/VIZ/2012 271(1)(C) OF THE ACT. THEREFORE, WE FIND NO ERROR IN THE APP ROACH OF THE CIT(A) IN DELETING THE PENALTY IMPOSED BY TH E ASSESSING OFFICER. 9 . THE DEPARTMENTAL REPRESENTATIVE RELIED UPON THE J UDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. ATUL MOHAN BINDAL REPORTED IN 317 ITR 01 AND ARGUED THAT EVEN IN CASE OF AGREED ADDITIONS, PENALTY IS LEVIABLE. THE DEPARTMENTAL R EPRESENTATIVE FURTHER ARGUED THAT IN THE PRESENT CASE, THE ASSESSEE WILLF ULLY CLAIMED DEDUCTION UNDER SEC. 80IB(11), BY KNOWING THAT THE UNIT IS NO T ELIGIBLE FOR DEDUCTION, THEREFORE IT AMOUNTS TO CONCEALMENT OF P ARTICULARS OF INCOME AND ALSO FURNISHING INACCURATE PARTICULARS OF INCOM E. WE HAVE EXAMINED THE CASE-LAWS RELIED UPON BY THE DEPARTMENTAL REPRE SENTATIVE, IN THE LIGHTS OF THE FACTS OF THE PRESENT CASE AND COME TO THE CONCLUSION THAT THE FACTS OF THE PRESENT CASE ARE NOT APPLICABLE TO THE CASE-LAW RELIED UPON BY THE DEPARTMENTAL REPRESENTATIVE. THE CASE BEFORE THE HONBLE SUPREME COURT IS THAT THE ASSESSEE HAS CONCEALED TH E PARTICULARS OF INCOME, BUT DURING THE COURSE OF ASSESSMENT PROCEED INGS AGREED FOR ADDITION. THE HON'BLE SUPREME COURT, AFTER CONSIDER ING THE RELEVANT FACTS SET ASIDE THE MATTER TO THE ASSESSING OFFICER TO RECONSIDER THE ISSUE AFRESH. IN THE PRESENT CASE, THE FACTS ARE T OTALLY DIFFERENT WHEREIN THE ASSESSEE HAS FURNISHED ALL THE PRIMARY FACTS RE QUIRED FOR CLAIMING THE DEDUCTION UNDER SEC. 80IB(11) OF THE ACT, BUT THE A SSESSING OFFICER DID NOT ACCEPT THE CLAIM AND HAD TAKEN A DIFFERENT VIEW AND LEVIED PENALTY. 12 ITA NO.217/VIZ/2012 10 . CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CA SE AND ALSO APPLYING THE RATIO OF THE JUDGMENTS DISCUSSED ABOVE , WE ARE OF THE OPINION THAT THE WRONG CLAIM OF DEDUCTION UNDER SEC . 80IB(11) OF THE ACT DOES NOT AMOUNT TO CONCEALMENT OF PARTICULARS OF IN COME OR FURNISHING INACCURATE PARTICULARS OF INCOME, WHICH ATTRACTS LE VY OF PENALTY UNDER SEC. 271(1)(C) OF THE ACT. THE CIT(A) RIGHTLY DELE TED THE PENALTY LEVIED U/S 271(1)( C) AND HIS ORDER DOES NOT REQUIRE ANY I NTERFERENCE. THEREFORE, WE UPHOLD THE ORDER OF THE CIT(A) AND DI RECT THE ASSESSING OFFICER TO DELETE THE PENALTY LEVIED UNDER SEC. 271 (1)(C) OF THE ACT. 11 . IN THE RESULT, APPEAL FILED BY THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH DECEMBER, 2015. SD/ SD/- ( . ) ( . . . . ) ( (( ( V. DURGA RAO ) )) ) ( G. MANJUNATHA) / // / JUDICIAL MEMBER / // / ACCOUNTANT MEMBER /VISAKHAPATNAM: 3 / DATED : 18 TH /12/2015 VR/SPS ) ' 4 / COPY OF THE ORDER FORWARDED TO :- 1. & / THE APPELLANT M/S. KANYAKA PARAMESWARI COLD STORAGE PVT. LTD., 24-2-2/3, GT ROAD, R. AGRAHARAM, GUNTUR. 2. '(& / THE RESPONDENT ITO, WARD-1(1), GUNTUR 3. 5 / THE CIT, GUNTUR. 4. 5 () / THE CIT (A), GUNTUR. 5. ' , , / // / 13 ITA NO.217/VIZ/2012 DR, ITAT, VISAKHAPATNAM. 6 . . . . / GUARD FILE / BY ORDER // TRUE COPY // 9: ( SR.PRIVATE SECRETARY ) , / // / ITAT, VISAKHAPATNAM