M/s Prathyusha Resources & Infra Pvt.Ltd,, Visakhapatnam V. THE DCIT, CIRCLE - 4(1), Visakhapatnam

ITA 29/VIZ/2014

• Counselvise Citation: 2925314 RSA 2014
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 28-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV K SINGH
• Keywords: Bonafide belief; Initiation of penalty proceedings; Non-deduction of tax; Non compliance; Assessment record; Revised return; Reassessment proceedings
• Section: 143(3); 133A; 147; 148; 263; 154

Judgement Text

ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 1 OF 24 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER, & SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.29/VIZAG/2014 ASSESSMENT YEAR: 2007-08 M/S. PRATHYUSHA RESOURCES & INFRA PVT LTD (FORMERLY PRATHYUSHA ASSOCIATES SHIPPING PVT LTD) PRATHYUSHA HOUSE, 25-40- 12 GANGULA VARI STREET, NEAR LAKSHMI TAKIES VISAKHAPATNAM THE DY.COMMISSIONER OF INCOME TAX CIRCLE 4(1) 3 RD FLOOR, PRATYAKSHAR BHAVAN MVP COLONY, VISAKHAPATNAM (APPELLANT) PAN NO: AADCP 6736 C VS. (RESPONDENT) ASSESSEE BY: SHRI G.V.N. HARI, CA DEPARTMENT BY: SHRI RAJEEV .K. SINGH, DR DATE OF HEARING: 03/03/2015 DATE OF PRONOUNCEMENT: 05/03/2015 ORDER PER SAKTIJIT DEY. THE AFORESAID APPEAL OF THE ASSESSEE IS AGAINST THE ORDER DATED 22.11.2013 PASSED BY THE LEARNED CIT (A) VISAKHAPATNAM CONFIRMING IMPOSITION OF PENALTY UNDE R SECTION 271(1)(C) OF THE ACT FOR THE ASSESSMENT YEAR 2007-08. ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 2 OF 24 2. BRIEFLY THE FACTS ARE ASSESSEE IS A COMPANY ENGAGE D IN THE BUSINESS OF STEVEDORING, CLEARING AND FORWARDING AGE NTS AND TRANSPORTATION, EXECUTION OF CIVIL CONTRACTS AND TRADING ACTIVITIES. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION ASSESSEE ORIGINALLY FILED ITS RETURN OF INCOME ON 31. 10.2007 DECLARING TOTAL INCOME OF RS.15,56,47,314. AS IT APPE ARS FROM RECORD, A SURVEY UNDER SECTION 133A WAS CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE ON 2.1.2008 TO VERI FY ASSESSEES COMPLIANCE TO TDS PROVISIONS. DURING THE SURVEY AS ALLEGED BY THE DEPARTMENT, IT WAS FOUND THAT THOUGH, ASSE SSEE HAS MADE PAYMENTS TO THE TUNE OF RS.5,59,35,981 TO DOCK LABOUR BOARD, BUT NO TAX WAS DEDUCTED AT SOURCE ON SUCH PAYMENT. SUBSEQUENTLY ASSESSEES CASE WAS SELECTED FO R SCRUTINY AND IN COURSE OF THE SCRUTINY ASSESSMENT PROC EEDINGS ASSESSING OFFICER ISSUED A QUESTIONNAIRE ON 21.11.20 08 TO THE ASSESSEE SEEKING HIS EXPLANATION ON PROPOSED DISALL OWANCE UNDER SECTION 40(A)(IA) OF THE ACT FOR AN AMOUNT OF RS.5,59,35,981 PROPOSED TO BE DISALLOWED UNDER SECTIO N 40(A)(IA) DUE TO NON DEDUCTION OF TAX AT SOURCE. DURIN G THE PENDANCY OF THE SCRUTINY ASSESSMENT PROCEEDINGS ASSES SEE FILED A REVISED RETURN OF INCOME ON 11.12.2008 BY OF FERING THE AMOUNT OF RS.5,59,35,981 AS ADDITIONAL INCOME. AS A RESULT, ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 3 OF 24 THE TOTAL INCOME WAS SHOWN AT RS.21,15,83,294. ASSESSM ENT IN CASE OF THE ASSESSEE WAS COMPLETED UNDER SECTION 1 43(3) OF THE ACT VIDE ORDER DATED 23.12.2009 BY DETERMINING TO TAL INCOME AT RS.22,18,89,053. AS IT APPEARS FROM RECORD, BEING AGGRIEVED OF SUCH ASSESSMENT ORDER ASSESSEE ALSO PRE FERRED AN APPEAL BEFORE THE LEARNED CIT (A) WHICH ON THE DATE OF IMPOSITION OF PENALTY WAS STILL PENDING. LEARNED CIT WHILE VERIFYING THE ASSESSMENT RECORD OF ASSESSEE PERTAINING TO THE ASSESSMENT YEAR UNDER CONSIDERATION, IN EXERCISE OF P OWER UNDER SECTION 263 OF THE ACT, NOTICED THAT THOUGH ASSESS EE HAS NOT OFFERED INCOME OF RS.5,59,35,981 IN THE ORIGINAL RETURN, IT WAS OFFERED ONLY IN THE REVISED RETURN OF INCOME AFTE R DETECTION OF ASSESSEES NON COMPLIANCE TO THE TDS PROVISIONS BU T THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT HA S FAILED TO INITIATE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) O F THE ACT, THOUGH THERE IS CLEAR EVIDENCE OF CONCEALMENT OF INCOME/FURNISHING OF INACCURATE PARTICULARS OF INCOME . LEARNED CIT BEING OF THE VIEW THAT ASSESSMENT ORDER PAS SED IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVEN UE ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE SEEKING HI S EXPLANATION AS TO WHY ASSESSMENT ORDER SHALL NOT BE REV ISED. THOUGH, ASSESSEE OBJECTED TO THE PROCEEDINGS INITIATED U NDER ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 4 OF 24 SECTION 263 OF THE ACT, BUT LEARNED CIT REJECTING ALL CO NTENTIONS OF THE ASSESSEE SET ASIDE THE ASSESSMENT ORDER WITH A D IRECTION TO THE ASSESSING OFFICER TO INITIATE PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT AND LEVY PENALTY AFTER GIVING OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. IT NEEDS TO BE MENTIONED, EVEN BEFORE THE REVISION O RDER WAS PASSED UNDER SECTION 263, IT CAME TO THE NOTICE OF TH E ASSESSING OFFICER THAT AS PER THE INFORMATION FURNISHE D, CERTAIN INADMISSIBLE EXPENDITURES ALLOWED IN THE ORIGINAL AS SESSMENT WERE REQUIRED TO BE DISALLOWED. ACCORDINGLY, HE ISSU ED A NOTICE UNDER SECTION 154 OF THE ACT. HOWEVER, AS IT APPEARS THE ASSESSING OFFICER THOUGH DROPPED THE PROCEEDINGS UNDE R SECTION 154 OF THE ACT BUT NEVERTHELESS REOPENED THE ASSESSMENT UNDER SECTION 147 ON THE VERY SAME ISSUE BY ISSUING A NOTICE UNDER SECTION 148 OF THE ACT WHICH WAS SERVED ON THE ASSESSEE ON 26.7.2010 BEFORE THE ORDER UNDER S ECTION 263 OF THE ACT WAS PASSED. THUS, AFTER THE ORDER WAS P ASSED BY THE LEARNED CIT UNDER SECTION 263 DIRECTING THE ASSESS ING OFFICER TO INITIATE PENALTY PROCEEDINGS IN RESPECT OF TH E AMOUNT OF RS.5,59,35,981 ASSESSING OFFICER COMPLETED THE REASSESSMENT PROCEEDINGS BY ASSESSING THE INADMISSIBL E ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 5 OF 24 EXPENDITURE OF RS.61,86,605 WHICH AS A MATTER OF FACT, WAS OFFERED AS INCOME BY THE ASSESSEE IN THE RETURN OF INC OME FILED IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT. FURTH ER, IN THE ASSESSMENT ORDER PASSED, AS AFORESAID, THE ASSESSI NG OFFICER INITIATED PROCEEDING FOR IMPOSITION OF PENALTY UNDER SECTION 271(1(C) FOR BOTH THE ITEMS OF INCOME I.E. IN RESPECT OF RS.5,59,35,981 AS DIRECTED BY LEARNED CIT UNDER SEC TION 263 AND ALSO RS.61,86,605 WHICH WAS SUBJECT MATTER OF ADD ITION IN THE REASSESSMENT 4. IN RESPONSE TO THE NOTICE ISSUED UNDER SECTION 271 R.W.S. 274 OF THE ACT, ASSESSEE SUBMITTED HIS REPLY EXPLAININ G THAT THERE BEING NO CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME, NO PENA LTY SHOULD BE IMPOSED UNDER SECTION 271(1)(C) OF THE ACT. IT WAS SUBMITTED BY THE ASSESSEE, AS FAR AS THE INCOME OF RS.5,59,35, 981 IS CONCERNED, TAX WAS NOT DEDUCTED ON THE PAYMENT MADE TO D OCK LABOUR BOARD UNDER THE BONAFIDE BELIEF THAT SUCH PAYME NTS WERE EXEMPT FROM DEDUCTION OF TAX AT SOURCE AS WAS THE CASE IN THE PREVIOUS YEARS WHEN THE DOCK LABOUR BOARD WAS ISS UED EXEMPTION CERTIFICATE. HOWEVER, SUBSEQUENTLY WHEN IT CA ME TO THE NOTICE OF ASSESSEE THAT THE DOCK LABOUR BOARD HAS MI SLED ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 6 OF 24 ASSESSEE AS WELL AS MANY OTHER SHIPPING COMPANIES WH O WERE MADE TO BELIEVE THAT IN THE IMPUGNED ASSESSMENT YEAR A LSO DOCK LABOUR BOARD WILL BE OBTAINING EXEMPTION CERTIFIC ATE, ASSESSEE BY DISALLOWING THE PAYMENT OF RS.5,59,35,981 UNDER SECTION 40(A)(IA) OF THE ACT FILED A REVISED RETURN DEC LARING THE SAID AMOUNT AS ADDITIONAL INCOME. 5. AS FAR AS EXPENDITURE OF RS.61,86,605 IS CONCERNE D, IT WAS SUBMITTED BY ASSESSEE THAT THE AMOUNTS WERE GROUPED WRONGLY UNDER THE HEAD TAXES AND DUTIES, DUE TO AN OV ERSIGHT. WHEN IT CAME TO THE ASSESSEES NOTICE, MISTAKE WAS RECTI FIED BY OFFERING IT AS ADDITIONAL INCOME BY WAY OF A REVISED RETURN FILED ON 3.11.2010. ASSESSING OFFICER AFTER CONSIDERING T HE EXPLANATION OF THE ASSESSEE, HOWEVER, WAS NOT CONVIN CED WITH THE SAME. HE OBSERVED THAT THOUGH ASSESSEE HAD NOT DEDU CTED TAX AT SOURCE ON PAYMENTS MADE TO DOCK LABOUR BOARD AMOUNTING TO RS.5,59,35,981 TO WHICH TDS PROVISIONS W ERE ATTRACTED, BUT HE NEVERTHELESS FAILED TO DISALLOW THE SAME AS PER THE PROVISIONS OF SEC 40(A)(IA) OF THE ACT. SIMIL ARLY, ASSESSEE ALSO DID NOT DISALLOW INADMISSIBLE EXPENDITURE OF RS .61,86,605 AND ONLY WHEN IT WAS POINTED OUT BY DEPARTMENT, ASSESSE E FILED REVISED RETURN OFFERING THE SAME AS ADDITIONAL I NCOME. ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 7 OF 24 ASSESSING OFFICER, THUS CONCLUDED THAT ASSESSEE HAS CO NCEALED THE INCOME TO THE EXTENT OF RS.6,21,22,586 BY FURNISHIN G INACCURATE PARTICULARS IN THE RETURN OF INCOME. ACCORD INGLY HE PASSED AN ORDER UNDER SECTION 271(1)(C) OF THE ACT IM POSING PENALTY OF RS.2,09,10,500. BEING AGGRIEVED OF THE IM POSITION OF PENALTY, ASSESSEE PREFERRED APPEAL BEFORE THE LEARNE D CIT (A). 6. IN COURSE OF HEARING BEFORE THE FIRST APPELLATE A UTHORITY, THOUGH ASSESSEE CONTESTED THE LEVY OF PENALTY UNDER SEC TION 271(1)(C) BY ADVANCING VARIOUS ARGUMENTS, BUT LEARNED CIT (A) DID NOT FIND MERIT IN ANY OF THEM. LEARNED CIT (A) OP INED THAT THE FACTUAL MATRIX OF THE CASE CLEARLY SHOW LACK OF BON AFIDE ON THE PART OF ASSESSEE, HENCE PENALTY UNDER SECTION 271( 1)(C) IS EXIGIBLE ON ACCOUNT OF NON DISCLOSURE OF INCOME OF RS.5,59,35,980 BEING PAYMENT MADE TO DOCK LABOUR BOAR D WITHOUT DEDUCTING TAX AT SOURCE. AS FAR AS INADMISSIBLE EXPENDITURE OF RS.61,86,605 DEBITED TO P&L ACCOUNT, L EARNED CIT (A) OBSERVED THAT PENALTY IS IMPOSABLE FOR NON D ISCLOSURE OF SUCH INCOME. THUS LEARNED CIT (A) CONFIRMED THE IMPO SITION OF PENALTY. BEING AGGRIEVED OF THE IMPUGNED ORDER OF THE LEARNED CIT (A) ASSESSEE HAS PREFERRED THE PRESENT APPEAL WIT H THE FOLLOWING REVISED GROUNDS: ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 8 OF 24 1. THE ORDER OF THE LEARNED CIT (APPEALS) IS CONTR ARY TO THE FACTS AND ALSO THE LAW APPLICABLE TO THE FAC TS. 2. THE LEARNED CIT (A) IS NOT JUSTIFIED IN CONFIRM ING THE PENALTY OF RS.2,09,10,500 LEVIED BY ASSESSING OFFIC ER UNDER SECTION 271(1)(C) OF THE I.T. ACT, 1961. 3 (A) THE LEARNED CIT (A) OUGHT TO HAVE APPRECIATED THAT IN THE CASE OF THE APPELLANT THERE WAS NEITHER CONCEALMENT OF PARTICULARS OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. (B) THE LEARNED CIT (A) OUGHT TO HAVE APPRECIATED THAT THE APPELLANT HAVING OFFERED AN EXPLANATION, BONAFI DES OF WHICH EXPLANATION WERE NOT DISPROVED BY THE ASSESSING OFFICER; PENALTY IS NOT EXIGIBLE UNDER SECTION 271(1)(C) OF THE ACT. 7. IN ADDITION TO THE REVISED GROUNDS, ASSESSEE HAS ALSO FILED A PETITION SEEKING ADMISSION OF THE FOLLOWING TWO ADD ITIONAL GROUNDS: A. WHETHER ON FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE PENALTY LEVIED ON 30.01.2012 WITH REGARD TO RS.5,59,35,980 AS PER THE DIRECTIONS CONTAINED I N ORDER DT. 15.9.2010 UNDER SECTION 263 OF THE ACT IS BARRED BY LIMITATION. B. WHETHER ON FACTS ARE IN THE CIRCUMSTANCES OF THE CASE, THE PENALTY LEVIED UNDER SECTION 271(1)(C) CA N LEGALLY STAND WHEN THE LEVY WAS INITIATED ON THE BASIS OF AN ORDER UNDER SECTION 143(3) R.W.S. 147 & 263 OF THE ACT AND THE SAID ORDER IS NOT A VALID OR DER IN THE EYES OF LAW. 8. AS THE ADDITIONAL GROUNDS ARE ON PURELY LEGAL ISS UES WHICH GOES TO THE ROOT OF THE MATTER AND CAN BE DECIDE D ON THE ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 9 OF 24 BASIS OF FACTS AVAILABLE ON RECORD, THESE GROUNDS ARE ADMITTED FOR ADJUDICATION. 9. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED BEFOR E US PAYMENT MADE TO THE DOCK LABOUR BOARD WAS DISALLOWE D BY THE ASSESSEE UNDER SECTION 40(A)(IA) AND OFFERED AS I NCOME IN THE REVISED RETURN OF INCOME FILED ON 11.12.2008 WHIC H SHOWS THAT THE ASSESSEE HAS VOLUNTARILY OFFERED INCOME ONCE I T CAME TO THE NOTICE THAT THE AMOUNT WAS REQUIRED TO BE DISALLOW ED UNDER SECTION 40(A)(IA). THE LEARNED AUTHORISED REPRE SENTATIVE SUBMITTED, IN NOTICE DATED 14.08.2009, ASSESSING OFFI CER ENQUIRED ABOUT DISALLOWANCE OF THE SAID AMOUNT UNDER S ECTION 40(A)(IA) BY WHICH TIME ASSESSEE HAS ALREADY FILED R EVISED RETURN OFFERING THE AMOUNT AS ADDITIONAL INCOME. THEREF ORE, AS ASSESSEE HAS OFFERED INCOME BEFORE ASSESSING OFFICE R HAS MADE UP HIS MIND TO ADD THE AMOUNT IN THE ASSESSMENT ORDER, I T CANNOT BE SAID THAT ONLY BECAUSE DETECTION WAS MADE BY THE DEPARTMENT, ASSESSEE CAME FORWARD TO OFFER AS ADDITION AL INCOME. LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT WHILE COMPLETING THE ORIGINAL ASSESSMENT UNDER SECTION 143(3) OF THE ACT ON 23.12.2009 ASSESSING OFFICER AFTER EXAM INING THE ISSUE DID NOT CONSIDER IT TO BE A FIT CASE FOR LEVY OF PENALTY, ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 10 OF 24 HENCE HE DECIDED NOT TO INITIATE PENALTY PROCEEDINGS U NDER SECTION 271(1)(C) OF THE ACT. THEREFORE, THE DIRECTION O F THE LEARNED CIT IN HIS ORDER DATED 15.09.2010 TO INITIATE PENALTY PROCEEDINGS IS OUTSIDE THE SCOPE OF HIS POWER, HENCE THE VERY FOUNDATION ON WHICH PENALTY PROCEEDINGS WAS INITIATED IS NOT IN ACCORDANCE WITH LAW. CONSEQUENTLY, THE PENALTY LEVIED IN PURSUANCE OF SUCH DIRECTION IS INVALID. LEARNED AUTHO RISED REPRESENTATIVE REFERRING TO THE PROVISIONS OF SECTION 2 71(1)(C) OF THE ACT SUBMITTED, THE PROVISION EMPOWERS NOT ONLY THE ASSESSING OFFICER BUT ALSO CIT AS WELL AS CIT (A) TO INITIATE PROCEEDINGS FOR IMPOSITION OF PENALTY UNDER SECTION 2 71(1)(C). THEREFORE, IF THE LEARNED CIT WAS OF THE VIEW THAT PENA LTY IS IMPOSABLE IN ASSESSEES CASE, INSTEAD OF INVOKING HI S POWER UNDER SECTION 263 TO REVISE THE ASSESSMENT ORDER, HE CO ULD HIMSELF HAVE INITIATED PROCEEDINGS UNDER SECTION 271( 1)(C) OF THE ACT. THEREFORE, THERE WAS NEITHER ANY NECESSITY NOR JURISDICTION TO REVISE THE ASSESSMENT ORDER FOR NOT INI TIATING PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) AS ASSES SING OFFICERS DECISION FOR NOT INITIATING PENALTY PROCEED INGS UNDER SECTION 271(1)(C) IS NEITHER ERRONEOUS NOR PREJUDICIA L TO THE INTERESTS OF REVENUE. ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 11 OF 24 10. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED EVE N OTHERWISE ALSO THE PENALTY ORDER PASSED BY ASSESSING OFFICER IS BARRED BY LIMITATION, BECAUSE AS PER THE PROVISIONS O F SEC 275(1)(B) ASSESSING OFFICER SHOULD HAVE CONCLUDED TH E PENALTY PROCEEDINGS ON OR BEFORE 31.3.2011 I.E. PRIOR TO EXP IRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER UND ER SECTION 263 WAS PASSED. IT WAS SUBMITTED, AS THE ORDER IMPOSING PENALTY WAS PASSED BEYOND A PERIOD OF SIX MONTHS I.E. ON 30.01.2012 IT IS BARRED BY LIMITATION. LEARNED AUTHORISED REPRESENTATIVE SUBMITTED PENALTY PROCEEDINGS IN PURSUANCE TO THE DIRECTIONS OF THE LEARNED CIT WAS INIT IATED ON 5.12.2011 AT THE TIME OF COMPLETION OF ASSESSMENT UNDER SECTION 143(3) R.W.S. 263/147 OF THE ACT. HOWEVER, THE DIRECTIONS OF THE CIT IN THE REVISION ORDER IS WITH REG ARD TO INITIATION OF PENALTY PROCEEDINGS IN RESPECT OF RS.5 ,59,35,980 RELATING TO THE ORIGINAL ASSESSMENT, WHEREAS THE REOPE NING OF ASSESSMENT IS WITH REGARD TO THE ADDITION OF RS.61,86,6 05 NOT CONSIDERED IN THE ORIGINAL ASSESSMENT. THUS, THE TWO PROCEEDINGS BEING COMPLETELY DIFFERENT IN NATURE, PA SSING OF A COMMON ORDER IS NOT IN ACCORDANCE WITH LAW, HENCE L EVY OF PENALTY ON THE BASIS OF SUCH INVALID ORDER IS NOT SUS TAINABLE. AS FAR AS THE MERIT OF THE ISSUE IS CONCERNED, LEARNED ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 12 OF 24 AUTHORISED REPRESENTATIVE SUBMITTED, DISALLOWANCE UNDER SECTION 40(A)(IA) IS PURELY TECHNICAL IN NATURE, BUT FO R THE OPERATION OF THE SECTION, THE EXPENDITURE INCURRED IS OTHERWISE ALLOWABLE. FURTHER, ASSESSEE WAS UNDER THE BONAFIDE B ELIEF THAT THE PAYEE DOCK LABOUR BOARD COULD BE ABLE TO SUBMIT NO N DEDUCTION CERTIFICATE FOR THE IMPUGNED ASSESSMENT YEAR ALSO AS WAS THE CASE IN THE PRECEDING YEAR, HENCE TAX WAS NOT D EDUCTED AT SOURCE. HOWEVER, IT WAS SUBMITTED BY THE LEARNED AUT HORISED REPRESENTATIVE MAJOR PART OF THE EXPENDITURE WAS PAID DU RING THE RELEVANT PREVIOUS YEAR AND VERY LITTLE AMOUNT REMA INED PAYABLE ON THE LAST DAY OF THE PREVIOUS YEAR. THEREFOR E, THE PROVISIONS OF SECTION 40(A)(IA) WOULD OTHERWISE NOT B E APPLICABLE TO THE PAYMENTS MADE DURING THE RELEVANT PREVIOUS YEAR. IN THIS CONTEXT LEARNED AUTHORISED REPRESENTATIVE REFERRED TO THE LEDGER ACCOUNT OF THE ASSESSEE AS SUBMITTED, IN THE PAP ER BOOK. HE FURTHER SUBMITTED AS PER ITAT VISAKHAPATNAM SPECIAL BENCH DECISION IN CASE OF MERLYN SHIPPING & TRANSPO RT VS. ACIT (136 ITD 38) PROVISIONS OF SECTION 40(A)(IA) AR E NOT APPLICABLE TO THE AMOUNTS PAID DURING THE RELEVANT PREVI OUS YEAR. THEREFORE, EVEN THOUGH THE ASSESSEE MIGHT HAVE UNDER A MISTAKEN IMPRESSION, OFFERED AMOUNT AS ADDITIONAL IN COME, BUT SUCH AMOUNT IS NOT EXIGIBLE TO TAX. THEREFORE, PENALTY CANNOT ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 13 OF 24 BE IMPOSED AT LEAST TO THE EXTENT OF PAYMENTS MADE DUR ING THE RELEVANT PREVIOUS YEAR AS THE SAME IS NOT DISALLOWABLE UNDER SECTION 40(A)(IA). 11. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED, EV EN AS FAR AS THE AMOUNT OF RS. 61,86,605 IS CONCERNED, THE SAID AMOUNT COMPRISES OF VARIOUS ITEMS LIKE INCOME TAX INTER EST ON DELAYED PAYMENT OF TDS, TAX ETC. DUE TO INADVERTENCE , ASSESSEE FAILED TO DISALLOW THE INCOME IN COMPUTATION OF INCOME. THE AUDITOR WHO CONDUCTED AUDIT UNDER SECTION 44AB ALSO OVERLOOKED THIS ASPECT AND DID NOT POINT OUT THE DISALLOWANCE IN HIS REPORT. EVEN, ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT UNDER SECTION 143(3) OF THE A CT ORIGINALLY, MISSED OUT THESE ITEMS THOUGH, THEY WERE VE RY MUCH PART OF THE INFORMATION FURNISHED BY THE ASSESSEE IN THE RETURN OF INCOME AS WELL AS ACCOMPANYING DOCUMENTS. ONLY WH EN THE MISTAKE WAS IDENTIFIED AT A LATER STAGE AND BROUGHT TO THE NOTICE OF THE ASSESSEE, ASSESSEE ITSELF ADMITTED INADMI SSIBLE EXPENDITURE AS ADDITIONAL INCOME AND OFFERED THEM TO TAX . IN THE ABOVE FACTUAL BACKGROUND, WHEN THE ASSESSEE HAS OF FERED AN INCOME TO THE TUNE OF RS.15.00 CRORES IN THE ORIGINA L RETURN, THERE IS NO REASON WHY ASSESSEE WOULD NOT HAVE SHOWN A SMALL ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 14 OF 24 AMOUNT OF RS.61.00 LAKHS. FURTHER, LEARNED AUTHORISE D REPRESENTATIVE REFERRING TO THE OBSERVATIONS MADE BY TH E ASSESSING OFFICER IN THE PENALTY ORDER SUBMITTED BEFOR E US, INITIALLY ASSESSING OFFICER HAD PROPOSED TO RECTIFY TH E ASSESSMENT ORDER UNDER SECTION 154 BUT HE DROPPED THE PROCEEDINGS ON THE GROUND THAT IT IS A DEBATABLE ISSUE. THEREFORE, WHEN THE ASSESSING OFFICER HIMSELF CONSI DERED THE DISALLOWANCE OF EXPENDITURE OF RS. 61,86,605 AS A DE BATABLE ISSUE, ASSESSEE CANNOT BE ACCUSED OF CONCEALING THE I NCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME OF THE SA ID AMOUNT. THUS, IT WAS SUBMITTED BY THE ASSESSEE THAT THERE IS NO CA SE FOR LEVYING PENALTY UNDER SECTION 271(1)(C) FOR BOTH THE I TEMS OF INCOME. IN SUPPORT OF THE CONTENTIONS, THE LEARNED AUTHO RISED REPRESENTATIVE RELIED UPON THE FOLLOWING DECISIONS: HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF RAJK UMAR JAIN (ITTA NO.147 OF 2013) ITAT HYDERABAD BENCH IN RAJ KUMAR JAIN (ITA NO.575/HYD/2012) AMBICA CHEMICAL PRODUCTS VS. ACIT (2003) 86 ITD 1 (VIZAG) CIT VS. RELIANCE PETRO-PRODUCTS PVT. LTD. (2010) 322 IT R 158 ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 15 OF 24 ORDER DATED 28.1.2015 OF HON'BLE BOMBAY HIGH COURT IN CASE OF JETSPEED AUDIO LTD IN ITA NO.285 OF 2013 12. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED BEFORE US THAT IN COURSE OF SURVEY CONDUCTED ON 2.1.20 08, THE DEPARTMENT CAME ACROSS THE TDS DEFAULT OF THE ASSESSEE IN RESPECT OF PAYMENT OF RS. 5,59,35,980. THUS, THE DISCL OSURE MADE BY THE ASSESSEE IS NOT VOLUNTARY BUT ONLY AS A RE SULT OF DETECTION BY THE DEPARTMENT. IN SO FAR AS THE INADMIS SIBLE EXPENDITURE OF RS.61,86,605 IS CONCERNED, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THE AMOUNT THOUGH, WAS NOT AT ALL ALLOWABLE AS AN EXPENDITURE BUT THE ASS ESSEE NOT ONLY IN THE ORIGINAL RETURN BUT ALSO IN THE FIRST REVISE D RETURN FAILED TO OFFER IT AS INCOME. ONLY WHEN THE ASSESSMENT WAS REOPENED UNDER SECTION 147 OF THE ACT TO ASSESS SUCH ES CAPED INCOME, ASSESSEE FILED ANOTHER REVISED RETURN DECLARI NG SUCH INCOME. THUS IT WAS SUBMITTED BY LEARNED DEPARTMENTAL REPRESENTATIVE, OFFERING OF ADDITIONAL INCOME BY THE A SSESSEE IS NOT VOLUNTARY, BUT AS A RESULT OF DETECTION BY THE DEPAR TMENT. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED AS THER E IS A CLEAR CASE OF CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME, ASSESSEE IS LIABLE TO BE LEVIED ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 16 OF 24 WITH PENALTY UNDER SECTION 271(1)(C). IN SUPPORT OF SUCH CONTENTION LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPO N THE FOLLOWING DECISIONS: I) UNION OF INDIA VS. DHARAMENDRA TEXTILE PROCESSORS 306 ITR 277 (S.C) II) MAK DATA LTD ( 358 ITR 598 ) (S.C) 13. AS FAR AS ARGUMENTS OF THE LEARNED AUTHORISED REPRESENTATIVE ON VARIOUS TECHNICAL ISSUES ARE CONCERN ED, THE LEARNED DEPARTMENTAL REPRESENTATIVE OPPOSING THE SAME SUBMITTED BEFORE US, THE PENALTY PROCEEDINGS CANNOT B E CONSIDERED TO BE BARRED BY LIMITATION AS THE ASSESSEE P REFERRED AN APPEAL AGAINST THE ORIGINAL ASSESSMENT ORDER WHICH IS PENDING. 14. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED, THE ASSESSEE HAVING NOT PREFERRED ANY APPEAL AGAINST THE ORDER PASSED UNDER SECTION 263 OF THE ACT, CANNOT AT THIS STA GE CHALLENGE THE VALIDITY OF THE DIRECTIONS OF THE CIT. H E FURTHER SUBMITTED EVEN OTHERWISE ALSO CIT IS EMPOWERED UNDER SECTION 263 OF THE ACT TO DIRECT THE ASSESSING OFFICER TO INITIATE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C). IN SUPPORT OF SU CH CONTENTIONS HE RELIED UPON THE DECISION OF THE HON'BLE ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 17 OF 24 ALLAHABAD HIGH COURT IN CASE OF COMMISSIONER OF INCO ME-TAX VS. SURENDRA PRASAD AGRAWAL 275 ITR 113. 15. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS MATERIAL ON RECORD. WE HAVE ALSO CAREFULLY APPLIED OUR MIND TO THE DECISIONS PLACED BEFORE US BY BOTH THE PARTIES. AS CAN BE SEEN, THERE ARE TWO ITEMS OF INCOME WHICH ARE SUBJECT MATTER OF THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. THE FIRST ONE IS AMOUNT OF RS.5,59,35,980 BEING PAYMENT MA DE TO DOCK LABOUR BOARD WITHOUT DEDUCTING TAX AT SOURCE. THE 2 ND AMOUNT IS EXPENDITURE CLAIMED OF RS.61,86,605 WHICH ARE OTHERWISE INADMISSIBLE EXPENDITURES. AS FAR AS THE PAY MENTS MADE TO DOCK LABOUR BOARD IS CONCERNED, IT IS EVIDENT THAT IN THE PRECEDING ASSESSMENT YEARS, DOCK LABOUR BOARD HAS BEEN GIVEN NO TAX DEDUCTION CERTIFICATE BY THE DEPARTMENT, A S A RESULT OF WHICH PAYMENTS MADE TO DOCK LABOUR BOARD WER E NOT SUBJECTED TO DEDUCTION OF TAX AT SOURCE. THIS FACT HAS N OT BEEN DISPUTED BY THE DEPARTMENT. IN THE IMPUGNED ASSESSMENT YE AR AS STATED BY ASSESSEE, THE DOCK LABOUR BOARD ALSO REPR ESENTED THAT THEY WILL BE OBTAINING A NO DEDUCTION CERTIFICATE FROM THE DEPARTMENT. THEREFORE, SINCE IN THE PRECEDING ASSESS MENT ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 18 OF 24 YEARS, NO DEDUCTION CERTIFICATE WAS ISSUED TO DOCK LA BOUR BOARD, THE ASSESSEE WAS UNDER A BONAFIDE IMPRESSION THAT IN THE IMPUGNED YEAR ALSO DOCK LABOUR BOARD WILL BE OBTA INING A NO DEDUCTION CERTIFICATE FROM THE DEPARTMENT. THEREFORE, THEY DID NOT DEDUCT TAX AT SOURCE ON THE PAYMENT MADE TO DOCK LABOUR BOARD. IT IS CONTENTION OF THE ASSESSEE THAT SINC E IN THE PRECEDING YEARS, NO DEDUCTION CERTIFICATE WAS USED TO B E OBTAINED BY THE DOCK LABOUR BOARD LONG AFTER THE END OF THE RELEVANT FINANCIAL YEAR AND AS THE DATE OF FILING OF R ETURN OF INCOME WAS GOING TO EXPIRE, ASSESSEE ANTICIPATING THE FACT THAT THE DOCK LABOUR BOARD WILL BE OBTAINING THE NO DEDUCT ION CERTIFICATE, LIKE EARLIER YEARS, FILED ITS RETURN OF IN COME WITHOUT MAKING DISALLOWANCE UNDER SECTION 40(A)(IA) FOR AN A MOUNT OF RS.5,59,35,980 THINKING THAT IT WILL BE AN ALLOWABLE EXPENDITURE. HOWEVER, WHEN ASSESSEE BECAME AWARE THA T FOR THE IMPUGNED ASSESSMENT YEAR, NO CERTIFICATE HAS BEEN ISSUED BY THE DEPARTMENT TO THE DOCK LABOUR BOARD EXEMPTING THE PAYMENTS MADE TO THEM FROM DEDUCTION OF TAX AND ASSESSEE HAS BEEN MISLED IN BELIEVING THAT SUCH CERTIFICATE WI LL BE OBTAINED BY THE DOCK LABOUR BOARD, ASSESSEE IMMEDIATE LY FILED A REVISED RETURN OFFERING THE AMOUNT OF RS.5,59,35,980 AS ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 19 OF 24 ADDITIONAL INCOME BY MAKING DISALLOWANCE UNDER SECTIO N 40(A)(IA) OF THE ACT., 16. CONSIDERED IN THE AFORESAID PERSPECTIVE, IT IS BEL IEVABLE THAT ASSESSEE CARRYING A BONAFIDE IMPRESSION THAT NO TA X IS REQUIRED TO BE DEDUCTED TO THE PAYMENTS MADE TO DOCK LABO UR BOARD IN VIEW OF NO DEDUCTION CERTIFICATE GOING TO BE ISSUED TO THEM BY THE DEPARTMENT LIKE PRECEDING YEARS, ASSESSEE DID NOT DEDUCT TAX AT SOURCE AS WELL AS DID NOT MAKE ANY DISALL OWANCE UNDER SECTION 40(A)(IA) OF THE ACT OF THE AMOUNT PAID TO THEM, THEREFORE, ASSESSEES EXPLANATION CANNOT BE CONSIDERE D AS NOT BONAFIDE. IN THESE CIRCUMSTANCES, THERE BEING NO MALA FIDE INTENTIONS OF ASSESSEE NOT TO SHOW THE INCOME OF RS.5,59,35,980 THE INGREDIENTS OF SECTION 271(1)(C) A RE NOT FULFILLED AS THERE IS NEITHER ANY CONSCIOUS ATTEMPT ON THE PART OF ASSESSEE TO CONCEAL THIS INCOME OR FURNISHING INAC CURATE PARTICULARS OF INCOME. EVEN OTHERWISE ALSO ON A PERUS AL OF THE LEDGER ACCOUNT, A COPY OF WHICH IS PLACED PAPER BOO K AT PAGE NO.113, IT IS SEEN THAT OUT OF TOTAL PAYMENT OF RS.4,18,39,326.31 MADE TO THE DOCK LABOUR BOARD UNDER THE REGISTERED SCHEME, ASSESSEE HAS PAID AN AMOUNT OF RS.3,19,13,080 DURING THE RELEVANT PREVIOUS YEAR AND AS ON THE ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 20 OF 24 LAST DATE OF RELEVANT PREVIOUS YEAR, AN AMOUNT OF RS.19,26,245.32 REMAINED PAYABLE. SIMILARLY, UNDER THE UNREGISTERED SCHEME, OUT OF THE TOTAL AMOUNT OF RS.2,10,97,743.58, ASSESSEE DURING THE RELEVANT PREV IOUS YEAR HAS PAID AN AMOUNT OF RS.2,04,62,251.95 AND THE AMOU NT REMAINING PAYABLE ON THE LAST DAY OF THE PREVIOUS YEAR WAS RS.6,35,491.63. THEREFORE, AS CAN BE SEEN, MAJOR PO RTION OF THE AMOUNT OF RS.5,59,35,980 WAS PAID BY THE ASSESSEE DU RING RELEVANT PREVIOUS YEAR. THEREFORE, IN TERMS WITH THE RA TIO LAID DOWN BY ITAT VISAKHAPATNAM SPECIAL BENCH IN THE CASE OF MERILYN SHIPPING & TRANSPORT VS. ACIT (SUPRA) NO DIS ALLOWANCE UNDER SECTION 40(A)(IA) CAN BE MADE ON THE PAYMENTS MA DE DURING THE RELEVANT PREVIOUS YEAR. THEREFORE, EVEN THO UGH ASSESSEE BY DISALLOWING SUCH PAYMENTS UNDER SECTION 4 0(A)(IA), MIGHT HAVE OFFERED IT AS INCOME UNDER MISTAKEN IMPRE SSION OF LAW, BUT FACT REMAINS SECTION 40(A)(IA) WILL NOT BE APP LICABLE TO AMOUNTS WHICH WERE PAID DURING THE RELEVANT PREVIOUS YEAR. THEREFORE, PENALTY UNDER SECTION 271(1)(C), AT LEAST, TO THE EXTENT OF AMOUNT PAID DURING THE PREVIOUS YEAR, WILL NOT BE LEVIABLE AS PROVISIONS OF SECTION 40(A)(IA) WILL NOT BE APPLICABLE TO SUCH AMOUNT. MOREOVER, THE FACTS AND MATERIALS ON R ECORD DOES NOT INDICATED THAT THERE WAS A CONSCIOUS ATTEMPT ON THE ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 21 OF 24 PART OF THE ASSESSEE TO EITHER CONCEAL THE PARTICULARS OF INCOME OR FURNISH INACCURATE PARTICULARS OF INCOME. ON THE O THER HAND CONSIDERING THE FACT THAT PAYMENTS MADE TO M/S. DOCK LABO UR BOARD IN THE PRECEDING YEARS, DID NOT ATTRACT TDS PROVI SIONS DUE TO NON DEDUCTION CERTIFICATE ISSUED BY THE DEPARTMEN T, TO CERTAIN EXTENT COULD HAVE LED ASSESSEE TO BELIEVE THAT PAYMENTS MADE IN THE IMPUGNED ASSESSMENT YEAR ALSO WOULD NOT A TTRACT THE TDS PROVISIONS. CONSIDERING THE FACT THAT UNDER A BO NAFIDE BELIEF ASSESSEE DID NOT DEDUCT TAX ON PAYMENTS MADE TO DOCK LABOUR BOARD AND ALSO FAILED TO DISALLOW THE EXPENDI TURE UNDER SECTION 40(A)(IA) IN THE ORIGINAL RETURN, PROVISIONS OF SECTION 271(1)(C) WILL NOT BE ATTRACTED. IT MAY FURTHER BE NOTE D, ASSESSEE HAS CONTENDED THAT PENALTY ORDER PASSED IN RE SPECT OF THE AMOUNT OF RS.5,59,35,980 IS BARRED BY LIMITATION A S PER SECTION 275(1)(B) OF THE ACT. ON CAREFUL CONSIDERATION OF THE FACTS AND MATERIALS ON RECORD VIS--VIS THE RELEVANT ST ATUTORY PROVISION WE FIND MERIT IN THE CONTENTIONS OF THE LEARN ED AUTHORISED REPRESENTATIVE. AS CAN BE SEEN, LEARNED CIT PASSED ORDER UNDER SECTION 263 OF THE ACT DIRECTING ASSESSING OFFICER TO INITIATE AND IMPOSE PENALTY UNDER SECTION 271(1)(C) VIDE ORDER DATED 15.09.2010. HOWEVER, THE PENALTY ORDER U NDER SECTION 271(1)(C) WAS PASSED BY THE ASSESSING OFFICE R ON ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 22 OF 24 30.01.2012. AS PER SECTION 275(1)(B) OF THE ACT, IN A CASE WHERE THE ASSESSMENT ORDER IS THE SUBJECT MATTER OF REVISION U NDER SECTION 263 OR SECTION 264 OF THE ACT, THE ORDER IMPOS ING PENALTY UNDER SECTION 271(1)(C) CANNOT BE PASSED AFT ER EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH SUCH RE VISION ORDER IS PASSED. IN THE PRESENT CASE, THE PENALTY ORD ER HAS BEEN PASSED MUCH BEYOND THE TIME PRESCRIBED UNDER SECTION 275(1)(B), THEREFORE, PENALTY ORDER IS BARRED BY LI MITATION IN SO FAR AS IT RELATES TO THE AMOUNT OF RS.5,59,35,980 IS CONCERNED. 17. AS FAR AS THE AMOUNT OF RS.61,86,605 IS CONCERNED , THERE IS NO DISPUTE TO THE FACT THAT ASSESSEE HAS DEBITED THEM TO THE PROFIT & LOSS ACCOUNT, THOUGH THEY ARE INADMISSIBLE EXPENDITURES. HOWEVER, IT IS ALSO A FACT ON RECORD THAT NOT ONLY ASSESSEE OMITTED TO DISALLOW SUCH EXPENDITURE AND OFFER IT AS INCOME IN THE ORIGINAL RETURN OF INCOME, BUT ALSO IN THE FIRST REVISED RETURN. ONLY WHEN THE ASSESSMENT WAS REOPENED UNDER SECTION 147 OF THE ACT FOR BRINGING TO TAX SUCH ESCAPED INCOME, ASSESSEE HAVING BECAME AWARE OF SUCH MISTAKE CAME FO RWARD AND FILED REVISED RETURN OFFERING SUCH INCOME. IN THI S REGARD IT IS TO BE NOTED THAT EVEN THE AUDITOR WHO AUDITED THE BOOKS OF ACCOUNT UNDER SECTION 44AB HAS OVERLOOKED THIS ASPECT A ND ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 23 OF 24 HAS NOT MADE ANY DISALLOWANCE OF THE INADMISSIBLE EXP ENDITURE IN THE AUDIT REPORT. IN FACT WHILE COMPLETING THE ORIGINA L ASSESSMENT IT ALSO ESCAPED THE ATTENTION OF THE ASSESSIN G OFFICER. HOWEVER, FACT REMAINS THAT ALL INFORMATION RE LATING TO SUCH EXPENDITURE WAS FURNISHED BY THE ASSESSEE ALONG WITH RETURN OF INCOME AND ON VERIFYING THE SAME, THE ASSES SMENT WAS REOPENED UNDER SECTION 147. THEREFORE, EXPLANATIO N OF THE ASSESSEE THAT INADMISSIBLE EXPENDITURE WAS NOT DISALLO WED DUE TO INADVERTENCE AND OVERSIGHT APPEARS TO BE BELIEVABL E AND BONAFIDE AS NOT ONLY ASSESSEE BUT THE AUDITOR AS WELL A S ASSESSING OFFICER WHO COMPLETED THE ORIGINAL ASSESSM ENT OVERLOOKED THIS ASPECT. THEREFORE, FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF PRICE WA TER HOUSE COOPERS PVT. LTD. VS. CIT (2012) 348 ITR 306 (S.C),IN OUR VIEW NO PENALTY IS IMPOSABLE UNDER SECTION 271(1)(C) OF THE ACT. MOREOVER THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS OFFERED THE INCOME IN RELATION TO WHICH PENALTY IS IM POSED IN THE REVISED RETURN FILED BY HIM. THERE IS NO MATERIAL BROUGHT ON RECORD WHICH COULD CONCLUSIVELY ESTABLISH THE FACT TH AT THERE WAS A CONSCIOUS ATTEMPT ON THE PART OF THE ASSESSEE TO C ONCEAL THE PARTICULARS OF INCOME OR FURNISHING INACCURATE PAR TICULARS OF INCOME RELATING TO THE AFORESAID TWO ITEMS. IN THE AF ORESAID ITA NO.29 OF 2014 PRATHYUSHA RESOURCES & INFRA P LT D VIZAG PAGE 24 OF 24 VIEW OF THE MATTER, IT IS A FIT CASE WHERE PENALTY S HOULD NOT BE IMPOSED UNDER SECTION 271(1)(C) OF THE ACT. ACCORDINGL Y, WE DELETE THE PENALTY IMPOSED UNDER SECTION 271(1)(C). S INCE WE HAVE DELETED THE PENALTY FOR THE AFORESAID REASONS, TH ERE IS NO NEED TO GO INTO VARIOUS OTHER ISSUES RAISED BY THE LE ARNED AUTHORISED REPRESENTATIVE. 18. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 5 TH MARCH, 2015. SD/- SD/- (J. SUDHAKAR REDDY) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 5 TH MARCH, 2015 PVV/SPS CAMP: VISAKHAPATNAM, COPY TO 1 M/S. PRATHYUSHA RESOURCES & INFRA PVT LTD (FORMERLY PRATHYUSHA ASSOCIATES SHIPPING PVT LTD) PRATHYUSHA HOUSE, 25-40-12 GANGULA VARI STREET, NEAR LAKSHMI TAKIES VISAKHAPATNAM 2 THE DY.COMMISSIONER OF INCOME TAX CIRCLE 4(1) 3 RD FLOOR, PRATYAKSHAR BHAVAN MVP COLONY, VISAKHAPATNAM 3 THE CIT (A) VISAKHAPATNAM 4 THE CIT (A) VISAKHAPATNAM 5 DEPARTMENTAL REPRESENTATIVE ITAT VISAKHAPATNAM 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM