GLOBAL INSTITUTE OF TECHNOLOGY, Jaipur V. ACIT, Jaipur

ITA 330/JPR/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1912 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 01-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA; R A VERMA CIT LQUOK
• Assessee Lawyers: S L PODDAR
• Keywords: Depreciation; Charitable institution; Bonafide belief; Question of law; Wrong claim; Difference of opinion; Competent authority; Capital receipt; Revised return
• Section: 143(3); 153A; 14A; 12AA

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPAN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL ; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 330/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 GLOBAL INSTITUTE OF TECHNOLOGY SOCIETY, D-91, AMBABARI, JAIPUR. CUKE VS. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAATG 3217 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 1029 & 1030/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 & 2012-13 DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3, JAIPUR. CUKE VS. GLOBAL INSTITUTE OF TECHNOLOGY SOCIETY (GITS), D-91, AMBABARI, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAATG 3217 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SHRI VARINDER MEHTA (CIT) & SHRI R.A. VERMA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 11/10/2017 MN?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 30/10/2017 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THESE ARE THE APPEALS FILED THE ASSESSEE AND THE R EVENUE EMANATES FROM THE SEPARATE ORDERS OF THE LD. CIT(A)-4, JAIPUR DATED 23/02/2015 AND 19/09/2016 FOR THE A.Y. 2009-10, 2011-12 AND 2012-13 R ESPECTIVELY. 2 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT 2. ALL THE THREE APPEALS WERE HEARD TOGETHER AND FO R THE SAKE OF CONVENIENCE AND BREVITY BEING DISPOSED OFF BY THIS COMMON ORDER. 3. IN REVENUES APPEAL I.E. ITA NO. 1029 & 1030/JP/ 2016 FOR THE A.Y. 2011- 12 & 2012-13, THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: GROUNDS OF ITA NO. 1029/JP/2016 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN DELETING ORDER PASSED BY ASSESS ING OFFICER U/S 271 (1)(C) OF INCOME TAX ACT, 1961. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT HOLDING THAT THE REVENUE RECEIPTS DIRECTLY TAKEN TO THE GENERAL RESERVE FUND AS CAPITAL RECEIPT DOES NO T AMOUNTS TO FURNISHING INACCURATE PARTICULARS OF INCOME. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN RELYING ON THE DECISION HAVING DIFFERENT FACTS WHEREIN THE REVISED RETURN WAS FILED DURING THE ASS ESSMENT PROCEEDING . 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT HOLDING THAT THE LD. ASSESSING OFF ICER HAS GROSSLY ERRED IN IMPOSING PENALTY OF RS. 17,51,000/- 271 (1 )(C) OF THE ACT BY ALLEGING THE CONCEALMENT OR INACCURATE PARTICULARS OF INCOME. GROUNDS OF ITA NO. 1030/JP/2016 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN DELETING ORDER PASSED BY ASSESS ING OFFICER U/S 271 (1)(C) OF INCOME TAX ACT, 1961. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT HOLDING THAT THE REVENUE RECEIPTS DIRECTLY TAKEN TO 3 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT THE GENERAL RESERVE FUND AS CAPITAL RECEIPT DOES NO T AMOUNTS TO FURNISHING INACCURATE PARTICULARS OF INCOME. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN RELYING ON THE DECISION HAVING DIFFERENT FACTS WHEREIN THE REVISED RETURN WAS FILED DURING THE ASS ESSMENT PROCEEDING . 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT HOLDING THAT THE LD. ASSESSING OFF ICER HAS GROSSLY ERRED IN IMPOSING PENALTY OF RS. 20,74,000/- 271 (1 )(C) OF THE ACT BY ALLEGING THE CONCEALMENT OR INACCURATE PARTICULARS OF INCOME. 4. THUS, IN BOTH THESE APPEALS, THE GROUNDS OF APPE AL ARE COMMON EXCEPT THE DIFFERENCE IN THE AMOUNT OF PENALTY DELETED BY THE LD. CIT(A). THE LD. CIT(A) HAS DELETED THE PENALTY BY HOLDING AS UNDER: 3.1.2 I HAVE DULY CONSIDERED ASSESSEE'S SUBMISSIO N AND CAREFULLY GONE THROUGH ASSESSMENT ORDER & PENALTY ORDER PASSED BY THE AO. I HAVE CAREFULLY PERUSED THE CASE RECORD ALSO. I HAVE ALSO CAREFULLY GONE THROUGH THE HONBLE ITAT BENCH JAIPUR'S ORDER DATED 15/3/2012 IN ITA NO 1062/JP/2011 FOR AY 2008-09 AND ALSO PERUSED THE CASE RECORDS. I HAVE TAKEN A NOTE OF FACTUAL MATRIX OF THE CASE AS WELL AS APPLICABLE CASE LAWS RELIED UPON. ASSESSEE, BEING A SOCIETY, I S REGISTERED U/S 12AA OF THE ACT, ACCORDINGLY ITS INCOME IS EXEMPT U /S 10(23C) OF THE ACT. THE APPELLANT SOCIETY APPLIES ITS INCOME AND F UNDS ACCRUED FROM INSTITUTES NAMELY GLOBAL INSTITUTE OF TECHNOLOGY & GLOBAL COLLAGE OF TECHNOLOGY FOR CHARITABLE PURPOSES AS DEFINED U/S 2 (15) OF THE ACT. ON PERUSAL OF AUDIT REPORT SUBMITTED U/S 12A(B) OF THE ACT, IT IS SEEN THAT AN AMOUNT OF INCOME OF THE PREVIOUS YEAR APPLIED TO CHARITABLE PURPOSE DURING THE YEAR IS AT RS. 44,27,077.89 WHEREAS ADDITION TO 4 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT FIXED ASSETS IS AT RS. 10,37,64,384.26. AO IN THE ASSESSMENT ORDER ON PG 3 HAS MENTIONED THAT THE ISSUE RELATING TO SEC. 10(23C) OF THE ACT HAS BEEN DECIDED BY THE HONBLE ITAT BENCH JAIPUR I N FAVOUR OF REVENUE BY ITA NO. I062/JP/2011 DT 15.03.2012 FOR AY 2008-09 AND THE ASSESSEE HAS NOT CHALLENGE THE SAID ORDER, ACCO RDINGLY, ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U/S 10(230) OF THE ACT. AO IN THE ASSESSMENT ORDER FURTHER ADDS THAT THE APPELLANT HA S SHOWN GROSS RECEIPTS OF RS. 14,86,18,270/= ON WHICH CLAIMED EXP ENSES TO THE TUNE OF RS. 14,41,91,192/= WHICH TANTAMOUNT TO INCOME OV ER EXPENDITURE OF RS. 44,27,078/=. IN THE ASSESSMENT ORDER PASSED FOR THE YEAR, AO HAS MADE FOLLOWING ADDITIONS/DISALLOWANCES: A) INCOME OVER EXPENDITURE [BEING EXEMPTION DENIED U/S 10(23C) RS. 44,27,078/= B) TRANSFER OF GENERAL RESERVE RS. 55,83,342/- * COMPUTER BANK RECEIPTS RS. 12,500/- * BOOK BANK INCOME RS. 6,05,000/- * FORMS/LATE FEES RS. 41,50,842/- * PROFIT ON SALE OF EQUITY SHARE RS. 8,15,000/- (C) EXCESS DEPRECIATION CLAIM ON BUSES DISALLOWED RS. 5,68,512/- OUT OF THE ABOVE ADDITIONS, AO CONSIDERED AMOUNTS R S. 55,83,342/- AND RS. 5,68,512/= FOR PENALTY LEVIABLE U/S 271 (1) (C) OF THE ACT. THE DEPRECIATION CLAIMED AT HIGHER RATE WAS BASED ON BO NAFIDE BELIEF THAT BUSES FOR TRANSPORTATION OF STUDENTS WILL ENTAILS H IGHER RATE OF DEPRECIATION. HOWEVER, THIS ADDITION CAN BE SAID TO BE A CASE OF ADDITION ON ACCOUNT OF DEBATABLE ISSUE AND ALSO ON ACCOUNT OF GENUINE DIFFERENCE OF OPINION BETWEEN THE AO AND THE APPELLANT SOCIETY, THEREFORE ON DEBATABLE ISSUE PENALTY U/S 2 71 (1)(C) OF THE ACT MAY NOT BE IMPOSABLE. IN THIS CASE, ASSESSEE HAD AL READY MADE FULL DISCLOSURE OF PARTICULARS BEFORE THE AO, ACCORDINGL Y THIS AMOUNT 5 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT CANNOT BE THE SUBJECT MATTER OF CONCEALED INCOME OR FURNISHING OF INACCURATE PARTICULARS. THEREFORE, AO IS DIRECTED T O EXCLUDE THIS AMOUNT OF RS. 5,68,512/= FROM THE CONCEALED INCOME FOR COMPUTATION OF PENALTY U/S 271(1)(C) OF THE ACT. NOW COMING TO AMOUNT OF RS. 55,83,342/=BEING THE CAPITAL ITEMS, TRANSFER TO GENERAL; ON CAREFUL PERUSAL OF CASE REC ORD AND SUBMISSIONS MADE BEFORE THE AO, IT IS SEEN THAT ASSESSEE HAS NO T CONTROVERTED AOS FINDINGS. EVEN DURING THE APPELLATE PROCEEDING , ASSESSEE HAS AGAIN FAILED TO CONTROVERT AOS FINDINGS WITH REGAR D TO RS. 55 , 83 , 342 /= TRANSFER TO GENERAL RESERVES. IN FACT, THIS IS ALSO NOT AS PER ACCOUNTANCY NORM. BEFORE PENALTY IS IMPOSED, AO IS SUPPOSED TO SATISFY HIMSELF/HERSELF THAT THE ASSESSEE HAS CONCE ALED INCOME, OR THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS O R THAT THE CASE OF THE ASSESSEE IS COVERED BY DEEMING FICTION OF ONE O F THE EXPLANATIONS APPENDED TO SECTION 271(1 ) (C) OF THE ACT. FURTHER, IT IS ALSO WELL SETTLED IN LAW THAT PENALTY PROCEEDINGS ARE DISTINC T FROM THE ASSESSMENT PROCEEDINGS AND BASED ON THE FINDINGS IN THE ASSESSMENT ORDER PER SE, PENALTY CANNOT BE IMPOSED. THEREFORE, FOR THE SAKE OF ADJUDICATION, IT HAS TO BE DECIDED THAT WHEN ASSESSEE HAS DELIBERATELY MADE THE SAID AMOUNT TRAN SFER TO ITS GENERAL RESERVE, THEN WHETHER IT CONSTITUTES A CASE OF FURNISHING INACCURATE PARTICULARS OR CONCEALMENT, WHICH IS BEI NG DECIDED IN PARA BELOW. 3.1.3 IT IS A FACT THAT THE SATISFACTION FOR CONCEA LMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF I NCOME HAS TO COME FROM THE ASSESSMENT ORDER PASSED AS A CONSEQUENCE O F THE RETURN FILED UNDER SECTION 153A OF THE ACT. IN THIS CASE, THERE IS NO TAX IMPLICATION ARISING OUT OF ASSESSMENT ORDER PASSED BECAUSE OF THE 6 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT FACT THAT ADDITIONS MADE IN THE ASSESSMENT ORDER HA VE BEEN SET OFF WITH B/F LOSSES. HOWEVER, AO OBSERVED THAT NOT ONLY ASSESSEES CASE WILL BE SQUARELY FALL UNDER EXPLANATION 5A TO THE P ROVISION OF SEC 271(1)(C) OF THE ACT BUT ALSO IT IS CASE OF FURNISH ING OF INACCURATE PARTICULARS. IT IS TRUE THAT ASSESSEE HAS ALSO FAIL ED TO EXPLAIN & SUBSTANTIATE REASON FOR TRANSFER OF RS. 55,83,342/= TO GENERAL RESERVE DURING BOTH ASSESSMENT PROCEEDING AS WELL A S APPELLATE PROCEEDING. NOW IT IS TO BE SEEN THAT WHETHER THE C LAIM MADE BY THE ASSESSEE IN ITS RETURN OF INCOME FILED FOR THE YEAR WAS PALPABLY WRONG AND LEGALLY UNTENABLE OR A DEBATABLE AND PLAU SIBLE CLAIM ON WHICH THE ASSESSEE DID NOT SUCCEED ON LEGAL INTERPR ETATION. FURTHER, IT IS ALSO SUBMITTED THAT THE QUESTION OF TAX SOUGH T TO BE EVADED OR IMPOSITION OF PENALTY DOES NOT EVEN ARISE FOR THE S IMPLE REASON THAT IN THE FIRST PLACE, THE APPELLANT SOCIETY AFTER SET TING OFF THE BROUGHT FORWARD LOSSES HAD ITS TOTAL INCOME AT RS. NIL. NOW , I FIND IT A CASE WHERE ASSESSEE HAS MADE A CLAIM UNDER A BONAFIDE BE LIEF IN RESPECT OF WHICH FULL PARTICULARS WERE FILED WITH THE RETUR N, THE DISALLOWANCE OF SUCH CLAIM WHICH WAS ULTIMATELY HELD TO BE A WRONG CLAIM WOULD NOT MEAN THAT ASSESSEE/APPELLANT SOCIETY HAS CONCEA LED THE PARTICULARS OF INCOME OR HAS FURNISHED INAC CURATE PARTICULARS OF INCOME SO AS TO WARRANT LEVY OF PENALTY. HERE IN TH IS CASE, HON'BLE ITAT BENCH JODHPUR'S DECISION IN CASE OF THE UDAIPUR CEN TRAL CO- OPERATIVE SOCIETY SUPRA) IS DIRECTLY APPLICABLE WHE REIN IT IS HELD AS UNDER: 'THESE ARE TWO DIFFERENT OMISSIONS OR DEFAULTS, ALB EIT, THEY REFER TO A DELIBERATE ACT ON THE PART OF THE ASSESSEE. A MERE OMISSION OR NEGLIGENCE WOULD NOT CONSTITUTE A DELIBERATE ACT OF EITHER SUPPRESSIO VERI OR SUGGESTIO FALSY. BY THE MERE REASON OF SUC H CONCEALMENT OR OF FURNISHING OF INACCURATE PARTICULARS ALONE, THE ASS ESSEE DOES NOT, IPSO FACTO, BECOME LIABLE TO A PENALTY. IMPOSITION OF PE NALTY IS NOT AT ALL AUTOMATIC. MEANING THEREBY, ANY ADDITION IN QUANTUM WOULD NOT LEAD TO AUTOMATIC LEVY OF PENALTY AND THIS IS ALSO TRUE IN RESPECT OF FURNISHING OF INACCURATE PARTICULARS OF INCOME.' THEREFORE, IN VIEW OF ABOVE DISCUSSION, AO'S ACTIO N FOR TREATING AMOUNT OF RS. 55,83,342/=TRANSFER TO GENERAL RESERV E (I) COMPUTER BANK RECEIPTS RS.12,500/= (II) BOOK BANK INCOME RS. 6,05,000/= (III) 7 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT FORMS/LATE FEES RS. 41,50,842/= AND (IV) PROFIT ON SALE OF EQUITY SHARE RS. 8,15,000/=, A CASE OF CONCEALMENT AS WELL AS FURNISHING OF INACCURATE PARTICULARS ; CANNOT BE JUSTIFIED IN THE EYES OF LAW, HENCE DELETED. 3.1.4 THEREFORE, IN VIEW OF FACTS AND CIRCUMSTANCE S OF THE CASE AS DISCUSSED ABOVE, PENALTY LEVIED OF RS. 17,51,000/= IS HEREBY DELETED. ASSESSEES APPEAL IN GROUND NO 2 IS ALLOWED. SIMILAR FINDINGS HAS ALSO BEEN GIVEN BY THE LD. CIT (A) IN A.Y. 2012-13 WHERE REVENUE IN APPEAL I.E. IN ITA NO. 1030/JP/2015 WHIL E DELETING THE PENALTY LEVIED BY THE ASSESSING OFFICER. 5. NOW THE REVENUE IS IN APPEALS BEFORE THE ITAT. T HE LD CIT DR HAS RELIED ON THE ORDER OF THE ASSESSING OFFICER. ON THE CONTR ARY, THE LD AR OF THE ASSESSEE HAS RELIED ON THE ORDER OF THE LD. CIT(A). 6. WE HAVE HEARD BOTH THE SIDES ON THIS ISSUE. THE ASSESSEE SOCIETY IS REGISTERED U/S 12AA OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), ACCORDINGLY, WHOSE INCOME IS EXEMPTED AS PER PROVIS IONS OF SECTION 10(23C) OF THE ACT. THE ASSESSEE HAD APPLIED ITS INCOME AND FU NDS ACCRUED FOR CHARITABLE PURPOSES AS DEFINED IN SECTION 2(15) OF THE ACT. TH E ASSESSING OFFICER CONSIDERED TWO AMOUNTS FOR LEVY OF PENALTY I.E. TRA NSFER OF GENERAL RESERVE OF RS. 55,83,342/- AND CLAIM OF HIGHER DEPRECIATION TO THE TUNE OF RS. 5,68,512/-. THE CLAIM OF DEPRECIATION AT HIGHER RATE WAS BASED ON BONAFIDE BELIEF THAT THE 8 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT BUSES FOR TRANSPORTATION OF STUDENTS WILL BE ELIGIB LE FOR HIGHER RATE OF DEPRECIATION. THE ASSESSEE HAS MADE FULL DISCLOSURE OF PARTICULARS BEFORE THE ASSESSING OFFICER, THEREFORE, IN OUR CONSIDERED VIE W, THIS AMOUNT CANNOT BE TREATED AS CONCEALED PARTICULARS OF INCOME. FURTHER THE AMOUNT OF RS. 55,83,342/- WAS TRANSFERRED TO GENERAL RESERVE, ON T HIS AMOUNT ALSO, THE ASSESSEE HAS NOT FURNISHED INACCURATE PARTICULARS O F INCOME. IN THIS FACTUAL MATRIX, WE ALSO NOTE THAT THERE WAS NO TAX IMPLICAT ION ARISING OUT OF THE ASSESSMENT PASSED BY THE ASSESSING OFFICER FOR THE REASON THAT SUCH ADDITIONS GOT SET OFF WITH THE BROUGHT FORWARD LOSSES. CONSID ERING ALL THESE FACTS AND CIRCUMSTANCES, WE SUSTAIN THE ORDER OF THE LD. CIT( A) ON THIS ISSUE. 6.1 SIMILARLY IN THE CASE OF A.Y. 2012-13, THE PENA LTY HAS BEEN LEVIED AND THE AMOUNT OF RS. 62,60,006/- HAS BEEN TRANSFERRED T O GENERAL RESERVE FOR WHICH WE HAVE ALREADY TAKEN A VIEW THAT THE ASSESSEE HAS MADE THE CLAIM IN THE RETURN OF INCOME AND HAS SUBMITTED ALL RELEVANT DOCUMENTS. FURTHER IT WAS A DEBATABLE ISSUE, THEREFORE, IN THIS YEAR ALSO, WE SUSTAIN THE ORDER OF THE LD. CIT(A). THE OTHER ISSUE FOR LEVY PENALTY OF RS. 9,4 5,825/- WAS THAT INCOME OVER EXPENDITURE. THE ISSUE WAS DEBATABLE AND IT WAS SIM PLY A DIFFERENCE OF OPINION BETWEEN A.O. AND ASSESSEE SOCIETY. THE ASSESSEE HAD NEITHER CONCEALED INCOME NOR FILED INACCURATE PARTICULARS OF INCOME. ON THIS ISSUE ALSO, WE AGREE WITH THE FINDINGS OF THE LD. CIT(A) THAT THIS WAS A DEBATABLE ISSUE AND THERE WAS 9 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT DIFFERENT OPINION ON SUCH ISSUE. CONSIDERING ALL TH ESE FACTS, WE FIND NO FAULT IN THE ORDER OF THE LD. CIT(A) AND ACCORDINGLY, WE SUS TAIN THE SAME. 7. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. 8. NOW WE TAKE ASSESSEES APPEAL IN ITA NO. 330/JP/2 015. IN THIS APPEAL, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. UNDER THE FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A)-4, JAIPUR HAS ERRED IN UPHOLDING THE ORDER D ATED 10.03.2014 PASSED BY THE LD. ACIT, CENTRAL CIRCLE- 3, JAIPUR UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 LEVYI NG A PENALTY OF RS. 19,57,310/- WITHOUT APPRECIATING THE FACT THAT THE PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 IS LEVIABLE O NLY IN CASES WHERE THERE IS WILLFUL CONCEALMENT OF INCOME OR WIL LFUL FURNISHING OF INACCURATE PARTICULARS OF INCOME. 2. UNDER THE FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A)-4, JAIPUR HAS ERRED IN COMING TO THE CONCLUS ION THAT THE ASSESSEE HAS FURNISHED THE INACCURATE PARTICULARS O F ITS INCOME. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A)-4, JAIPUR HAS NOT APPRECIATED THE RATIO LAID BY THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF CIT VS RELIAN CE PETROPRODUCTS (P) LTD (2010) 322 ITR 158 (SC) WHERE IN IT WAS HELD THAT THE MERE MAKING OF THE CLAIM, WHICH IS NOT SUS TAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACC URATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A)-4, JAIPUR HAS ERRED IN LEVYING THE PENALTY U NDER SECTION 271(1)(C) IN SPITE OF THE FACT THAT IN VIEW OF THE APPEAL EFFECT ORDER DATED 27.09.2012 PASSED BY THE LD. CIT(A)-II, JAIPUR, THE ASSESSED INCOME OF THE APPELLANT WAS REDUCED TO NIL MEANING 10 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT THEREBY THAT THERE WAS NO TAX SOUGHT TO BE EVADED B Y THE APPELLANT. 9. THE BRIEF FACTS OF THE CASE ARE THAT THE RETURN OF INCOME WAS FILED ON 30/09/2009 DECLARING INCOME AT RS. NIL. THE ASSESSM ENT WAS COMPLETED U/S 143(3) OF THE ACT AT TOTAL INCOME OF RS. 60,75,130/ - AND LEVIED THE PENALTY OF RS. 19,57,310/-. 10. AN APPLICATION FOR ADMITTING THE ADDITIONAL GRO UND WAS ALSO SUBMITTED. WE HAVE HEARD BOTH THE SIDES ON THIS ISSUE AND AFTE R HEARING, WE ADMIT THIS ADDITIONAL GROUND BEING THE LEGAL GROUND IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF NTPC VS. CIT (1999) 15 7 CTR (SC) 249 WHEREIN THE HON'BLE SUPREME COURT HAS HELD AS UNDER: THE VIEW THAT THE TRIBUNAL IS CONFINED ONLY TO ISS UES ARISING OUT OF THE APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX (APPEA LS) TAKES TOO NARROW A VIEW OF THE POWERS OF THE APPELLATE TRIBUN AL (VIDE, E.G., CIT V. ANAND PRASAD [1981] 128 ITR 388 (DELHI), CIT V. KAR AMCHAND PREMCHAND P. LTD. [1969] 74 ITR 254 (GUJ) AND CIT V . CELLULOSE PRODUCTS OF INDIA LTD. [1985] 151 ITR 499 (GUJ) [FB]). UNDOU BTEDLY, THE TRIBUNAL WILL HAVE THE DISCRETION TO ALLOW OR NOT ALLOW A NE W GROUND TO BE RAISED. BUT WHERE THE TRIBUNAL IS ONLY REQUIRED TO CONSIDER A QUESTION OF LAW ARISING FROM THE FACTS WHICH ARE ON RECORD IN THE A SSESSMENT PROCEEDINGS WE FAIL TO SEE WHY SUCH A QUESTION SHOU LD NOT BE ALLOWED TO BE RAISED WHEN IT IS NECESSARY TO CONSIDER THAT QUE STION IN ORDER TO CORRECTLY ASSESS THE TAX LIABILITY OF AN ASSESSEE. JUTE CORPORATION OF INDIA LTD. VS. CIT (1990) 88 CTR (SC) 66 RELIED ON. 11 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT 11. AT THE TIME OF HEARING, THE ADDITIONAL GROUND R AISED BY THE ASSESSEE WAS NOT PRESSED, THEREFORE, THE SAME STANDS DISMISSED A S NOT PRESSED. 12. THE LD. CIT(A) HAS CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER BY HOLDING AS UNDER: 5.5 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS O F THE APPELLANT AS ALSO THE FINDINGS OF THE AO. IT MAY BE NOTED THAT THE ASSESS EE HAS CLAIMED ITS INCOME EXEMPT U/S 10(23)(C) OF IT ACT. HOWEVER THE AO NOTED THAT THE COMPETENT AUTHORITY HAS NOT ACCORDED ANY SUCH EXEMP TION U/S 10(23)(C) OF IT ACT. DURING THE ASSESSMENT PROCEEDI NGS THE AO ALSO NOTED THAT THE ASSESSEE HAS MADE ADVANCES TO THE PE RSONS REFERRED IN SEC. 13(3) OF IT ACT. SIMILARLY, INVESTMENT IN VIOL ATION OF SEC. 11(5) WAS ALSO NOTICED. IN VIEW OF THESE FACTS AS AGAINST THE DECLARED INCOME AT NIL, THE AO ASSESSED THE INCOME AT RS. 6075130 WHIC H INCLUDED SURPLUS OF INCOME OVER EXPENDITURE OF RS. 3117688 AND OTHER ADDITIONS ON ACCOUNT OF INCOME FROM SALE OF ADMISSION FORM, INCO ME FROM LATE FEES, INCOME FROM BOOK BANK, DISALLOWANCE OF WRONG CLAIM OF DEPRECIATION AND DONATIONS. THE ASSESSEE HAS PREFERRED APPEAL AG AINST THE AOS ORDER BEFORE THE WORTHY CIT(A) AND THE ACTION OF TH E AO WAS CONFIRMED. HOWEVER WHILE DECIDING SUCH APPEAL THE W ORTHY CIT(A) DIRECTED THE AO TO ALLOW BENEFIT OF CARRY FORWARD B USINESS LOSSES OF EARLIER YEARS. DUE TO SUCH FINDING OF WORTHY CIT(A) THE POSITIVE INCOME OF RS. 6075130 WAS REDUCED TO NIL INCOME. AS THE AS SESSEE HAS WRONGLY CLAIMED EXEMPTION U/S 10(23)(C) AS ALSO THAT BENEFI T OF SEC. 11 & 12 WAS ALSO TO BE DISALLOWED BECAUSE OF VIOLATIONS IN TERMS OF SEC. 13(3)/ 11(5) OF IT ACT, THEREFORE WHILE COMPLETING THE ASS ESSMENT THE AO ALSO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF IT A CT. DURING THE 12 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT PROCEEDINGS BEFORE THE AO THE APPELLANT CONTENDED T HAT PENALTY PROCEEDINGS AND ASSESSMENT PROCEEDINGS ARE INDEPEND ENT PROCEEDINGS AS ALSO THAT THE ASSESSEE HAS NEITHER FURNISHED INA CCURATE PARTICULARS OF INCOME NOR CONCEALED ANY INCOME AND THEREFORE SI MPLY ON THE REASON THAT CLAIM U/S 10(23)(C) AND BENEFIT OF EXEM PTION U/S 11 & 12 WAS NOT ALLOWED AS ALSO CERTAIN ADDITIONS WERE MADE , NO PENALTY U/S 271(1)(C) OF IT ACT CAN BE IMPOSED. HOWEVER THE AO NOTED THAT BY MAKING SUCH WRONG CLAIM U/S 10(23)(C) AND EXEMPTION U/S 11 & 12 THE ASSESSEE INTENTIONALLY FURNISHED INACCURATE PARTICU LARS OF INCOME AND ACCORDINGLY PENALTY WAS TO BE IMPOSABLE. THE AO ACC ORDINGLY IMPOSED PENALTY OF RS. 1957302. ON THE OTHER HAND THE APPEL LANTS CASE IS THAT PENALTY U/S 271(1)(C) IS LEVIABLE ONLY IN CASES WHE RE THERE IS WILLFUL CONCEALMENT OF INCOME OR WILLFUL FURNISHING OF INAC CURATE PARTICULARS OF INCOME. IT WAS ALSO CONTENDED THAT EXEMPTION U/S 11 & 12 WAS BASED ON BONAFIDE INTERPRETATION OF PROVISIONS OF SEC. 11 & 12 OF IT ACT AND THAT FOR SUCH BONAFIDE CLAIM PENALTY U/S 271(1)(C) CANNOT BE IMPOSED. ANOTHER CONTENTION OF THE APPELLANT IS THAT MERE AD DITION OF INCOME OR DISALLOWANCE OF AN EXPENDITURE CLAIMED BY THE ASSES SEE WILL NOT LEAD TO IMPOSITION OF PENALTY U/S 271(1)(C) AS ALSO THAT TH E REJECTION OF CLAIM OF EXEMPTION U/S 11 & 12 IS A DEBATABLE ISSUE AND ON T HE DEBATABLE ISSUE NO PENALTY CAN BE IMPOSED U/S 271(1)(C). IT IS ALSO SUBMITTED THAT AS PER THE SETTLED PROPOSITION OF LAW WHERE A CLAIM OF DEDUCTION IS MADE UNDER A BONAFIDE BELIEF THEN SIMPLY ON THE REASONS THAT SUCH CLAIM IS REJECTED THE PENALTY MAY NOT BE IMPOSED. FOR SUCH C ONTENTIONS, THE APPELLANT HAS ALSO RELIED ON VARIOUS CASE LAWS. THE APPELLANT FURTHER SUBMITTED THAT ALTER THE DECISION OF WORTHY CIT(A) THE APPELLANT HAS BEEN ALLOWED BENEFIT OF CARRY FORWARD BUSINESS LOSS ES AND AFTER SUCH ALLOWANCE, THE POSITIVE INCOME IS REDUCED TO NIL/ N EGATIVE INCOME AND THAT ACCORDINGLY ON LOSS INCOME PENALTY U/S 271 (1) (C) MAY NOT BE 13 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT IMPOSED. ON CAREFUL CONSIDERATION OF ALL RELEVANT F ACTS, THERE IS NO DISPUTE ON THE FACT THAT THE ASSESSEE WRONGLY CLAIM ED EXEMPTION U/S 10(23)(C) OF IT ACT WHEN SUCH EXEMPTION HAS NOT BEE N ALLOWED TO THE ASSESSEE BY ANY COMPETENT AUTHORITY. SUCH WRONG CLA IM CANNOT SAID TO BE BONAFIDE IN AS MUCH AS WHEN ANY COMPETENT AUTHOR ITY HAS NOT ACCORDED ANY SUCH EXEMPTION U/S 10(23)(C) OF IT ACT THEN MAKING OF SUCH CLAIM WAS DEFINITELY WITH A MALAFIDE INTENTION OF NOT PAYING THE TAX. AS REGARDS REJECTION OF CLAIM U/S 11 & 12 OF I T ACT IT IS NOTED THAT THE APPELLANT HAS VIOLATED PROVISION OF SEC. 13(3) AS WELL AS 11(5) OF IT ACT AND THE APPELLANT HAS NOT DISPUTED SUCH FACT TH AT SUCH VIOLATIONS WERE MADE AND BENEFIT U/S 11 & 12 WAS NOT TO BE ALL OWED. THEREFORE EVEN THE CLAIM OF BENEFIT U/S 11 AND 12 WAS ABSOLUT ELY WRONG AND WITH THE MALAFIDE INTENTION OF NOT PAYING DUE TAX ON THE INCOME. SUCH ACTION OF THE AO HAS ALSO BEEN CONFIRMED BY THE FIR ST APPELLATE AUTHORITY. SIMILARLY, THE VARIOUS ADDITIONS MADE BY THE AO ARE ALSO CONFIRMED BY THE FIRST APPELLATE AUTHORITY. AS REGA RDS THESE ADDITIONS THE APPELLANT HAS NOT DISPUTED THE FINDING OF THE A O OR OF THE FIRST APPELLATE AUTHORITY. IT IS ALSO NOT A CASE THAT SUC H DISALLOWANCE HAS BEEN MADE BY THE AO SIMPLY ON THE REASON THAT PROPE R EXPLANATION WAS NOT FURNISHED BY THE ASSESSEE AND THE FACT IS T HAT SUCH ADDITIONS WERE MADE BECAUSE THESE WERE NOT AT ALL OF ALLOWABL E NATURE AND THERE WAS NO TWO OPINION ON THE FACT THAT SUCH ADDITIONS WERE TO BE MADE AS PER THE PROVISIONS OF IT ACT. AS REGARDS THE ANOTHE R CONTENTION OF THE ASSESSEE THAT THERE WAS NO MALAFIDE INTENTION FOR M AKING SUCH CLAIM, IT MAY BE MENTIONED THAT PRIMA FACIE SUCH CLAIM WERE N OT OF BONAFIDE NATURE. MOREOVER FOR IMPOSITION OF PENALTY U/S 271( L)(C) OF IT ACT IT IS NOT NECESSARY THAT THE MENS REA OF THE ASSESSEE OR THE MALAFIDE INTENTION OF THE ASSESSEE IS TO BE PROVED. FOR SUCH PROPOSITION OF LAW RELIANCE IS PLACED ON THE DECISION OF HON. SUPREME COURT IN THE CASE OF 14 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT UNION OF INDIA VS. DHARMENDRA TEXTILE PROCESSORS, 2 95 ITR 244, WHEREIN IT HAS BEEN HELD THAT THE WILLFUL CONCEALMENT IS NO T AN ESSENTIAL INGREDIENT FOR IMPOSITION OF PENALTY. AS REGARDS TH E CONTENTION OF THE APPELLANT THAT WITH THE EFFECT OF ORDER OF APPELLAT E AUTHORITY AND AFTER GIVING CREDIT OF EARLIER YEARS BUSINESS LOSSES ETC. THE POSITIVE INCOME HAS BEEN REDUCED TO LOSS AND THEREFORE PENALTY CANN OT BE IMPOSED, IT MAY BE STATED THAT SUCH CONTENTION OF THE APPELLANT CANNOT BE ACCEPTED IN AS MUCH AS WHEN FURNISHING OF INACCURAT E PARTICULARS OF INCOME FOR RS. 6075130 IS PROVED THEN EVEN IF THE R ETURNED INCOME AFTER PROVIDING BENEFIT OF EARLIER YEAR BUSINESS LO SSES ETC. IS REDUCED TO LOSS, PENALTY U/S 271(L)(C) CAN BE IMPOSED. FOR SUC H FINDING RELIANCE IS PLACED ON THE FOLLOWING DECISIONS: A. CIT VS. RMP PLASTO PVT. LTD. (2009) 313 ITR 397 (SC) B. JCIT VS. SAHELI LEASING AND INDUSTRIES LTD. (20 10) 324 ITR 170 (SC) C. VIRTUAL SOFT SYSTEMS LTD. VS. CIT (2007) 289 I TR 83 (SC) KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES DIS CUSSED ABOVE, I AM OF THE CONSIDERED VIEW THAT THE CLAIM OF THE ASSESS EE U/S 10(23)(C) WAS NOT OF BONAFIDE NATURE. SIMILARLY THE CLAIM OF BENE FIT U/S 11 & 12 WAS ALSO NOT OF BONAFIDE NATURE. IT IS ALSO FACT THAT I N RESPECT OF SUCH CLAIM REJECTED BY THE AO THERE CANNOT BE ANY DEBATABLE IS SUE OR TWO OPINIONS AND THEREFORE THE VARIOUS CASE LAWS RELIED UPON BY THE APPELLANT ARE NOT RELEVANT TO THE FACTS AND FINDINGS OF THE ASSES SEES CASE. ACCORDINGLY, WHEN THE ASSESSEE WAS FOUND TO HAVE FU RNISHED INACCURATE PARTICULARS OF INCOME FOR RS. 6075130, P ENALTY U/S 271(1)(C) WAS IMPOSABLE. ACCORDINGLY THE AO HAS RIGHTLY IMPOS ED PENALTY OF RS. 1957310 U/S 271(1)(C) AND THE SAME IS CONFIRMED. 15 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT 13. AFTER HEARING BOTH THE SIDES ON THIS ISSUE, WE FIND THAT IN QUANTUM APPEAL, THE ITAT WHILE DECIDING THE ITA NO. 892/JP/ 2012 FOR THE A.Y. 2009-10 AND C.O. OF THE ASSESSEE NUMBERED AS 79/JP/2012 HAS HELD AS UNDER: 2.5 IT IS PLEADED BY THE ID. AR OF THE ASSESSEE TH AT SINCE THE ID. CIT(A) HAVE PASSED THE ORDER FOLLOWING THE JUDGMENT OF IT AT, T HEREFORE, THERE IS NO INFIRMITY IN THE ORDER OF THE SAME. IF THE CARRIED FORWARD LOSSES ARE ALLOWED TO THE ASSESSEE THEN THE INCOME WILL REMAIN NEGATIVE AND THE ISSUE IN QUESTION AS TO SECTION 11 AND 12 WILL NOT ARISE. IF THE ORDER PASSED BY THE ID. CIT(A) IS UPHELD THEN THE C.O. OF THE ASSESSEE BECOMES INFRUCTUOUS. 2.6 THE ID. DR IS HEARD. 2.7 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. WE FIND NO INFIRMITY IN THE OR DER OF THE ID. CIT(A) WHO HAS FOLLOWED THE ORDER OF THIS BENCH IN ASSESSE E'S OWN CASE FOR THE ASSESSMENT YEAR 2008-09 (ITA NO. 1062/JP/2011 DATED 15-03-2012) HOLDING THAT THE ASSESSEE IS ELIGIBLE TO BENEFITS O F SET OFF OF EARNED FORWARD LOSSES. RESPECTFULLY FOLLOWING THE DECISION OF THIS BENCH (SUPRA), WE DISMISS THE APPEAL OF THE REVENUE. SINC E THE APPEAL OF THE REVENUE IS DISMISSED, THEREFORE, THE GROUNDS OF THE ASSESSEE WILL BECOME INFRUCTUOUS AS CONTENDED BY THE ID. COUNSEL FOR THE ASSESSEE. 3.0 IN THE RESULT, THE APPEAL OF THE REVENUE AS WE LL AS C.O. OF THE ASSESSEE ARE DISMISSED. IT WAS ALSO PLEADED THAT THE LD. CHIEF COMMISSIONER OF INCOME TAX ALLOWED THE WITHDRAWAL OF APPLICATION OF THE ASSESSEE FILED ON 19/05/2009 U/S 10(23C)(IV) 16 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT OF THE ACT ON THE BASIS THAT THERE IS NO TAXABLE IN COME AFTER CONSIDERING EXEMPTION U/S 11 OF THE ACT AVAILABLE TO THE ASSESS EE. CONSIDERING ALL THESE ASPECTS, WE ARE OF THE VIEW THAT THE AUTHORITIES BE LOW WERE NOT JUSTIFIED FOR LEVYING THE PENALTY FOR WILLFUL CONCEALMENT OF INCO ME OR WILLFUL FURNISHING INACCURATE PARTICULARS OF INCOME. FURTHER WE WOULD LIKE TO STATE THAT THE A.O. WAS NOT SURE UNDER WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY HAS BEEN LEVIED, THE ASSESSING OFFICER HAS HELD AS UNDE R: 8. FROM THE ABOVE IT IS CLEAR THAT THE ASSESSEE HA S INTENTIONALLY FURNISHED INACCURATE PARTICULARS OF INCOME IN ITS R ETURN OF INCOME FILED U/S 139(1) OF THE I.T. ACT, 1961 BY WRONG CLA IM OF EXEMPTION U/S 11 & 12 AND CONCEALED ITS CORRECT AND TRUE INCO ME/FURNISHED INACCURATE PARTICULARS OF INCOME BY NOT SHOWING COR RECT PARTICULARS OF INCOME. THIS SHOWS THAT THE ASSESSEE HAD COMMITTED THE DEFAULT AS PRESCRIBED U/S 271(1)(C) O F THE IT ACT, 1961 AND IS THEREFORE LIABLE FOR PENALTY. WE WOULD ALSO STATE THAT CONSIDERING THE LAW LAID D OWN BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD. 322 ITR 158 (SC), THE PENALTY CANNOT BE SUSTAINED. THE HON' BLE SUPREME COURT HAS HELD AS UNDER: 10. WE ARE NOT CONCERNED IN THE PRESENT CASE WITH THE MENS REA. HOWEVER, WE HAVE TO ONLY SEE AS TO WHETHER IN THIS CASE, AS A MATTER OF FACT, THE ASSESSEE HAS GIVEN INACCURATE P ARTICULARS. IN WEBSTER'S DICTIONARY, THE WORD 'INACCURATE' HAS BEE N DEFINED AS : 17 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT 'NOT ACCURATE, NOT EXACT OR CORRECT; NOT ACCORDING TO TRUTH ; ERRONEOUS; AS AN INACCURATE STATEMENT, COPY OR TRAN SCRIPT.' 11. WE HAVE ALREADY SEEN THE MEANING OF THE WORD ' PARTICULARS' IN THE EARLIER PART OF THIS JUDGMENT. READING THE WORDS 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. WE MUST HASTEN TO ADD HERE THAT IN THIS CASE, THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE * [2007] 291 ITR 5 19 (SC). ** [2008] 306 ITR 277 (SC). ASSESSEE IN ITS RETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE. SUCH NOT BEING THE CASE, THERE WOULD BE NO Q UESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. A MERE MAKING OF THE CLAIM, WHICH IS NOT SUSTAINABLE IN LA W, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REG ARDING THE INCOME OF THE ASSESSEE. SUCH CLAIM MADE IN THE RETU RN CANNOT AMOUNT TO THE INACCURATE PARTICULARS. 12. IT WAS TRIED TO BE SUGGESTED THAT SECTION 14A OF THE ACT SPECIFICALLY EXCLUDED THE DEDUCTIONS IN RESPECT OF THE EXPENDITU RE INCURRED BY THE ASSESSEE IN RELATION TO INCOME WHICH DOES NOT F ORM PART OF THE TOTAL INCOME UNDER THE ACT. IT WAS FURTHER POINTED OUT THAT THE DIVIDENDS FROM THE SHARES DID NOT FORM THE PART OF THE TOTAL INCOME. IT WAS, THEREFORE, REITERATED BEFORE US THAT THE AS SESSING OFFICER HAD CORRECTLY REACHED THE CONCLUSION THAT SINCE THE ASS ESSEE HAD CLAIMED EXCESSIVE DEDUCTIONS KNOWING THAT THEY ARE INCORRECT ; IT AMOUNTED TO CONCEALMENT OF INCOME. IT WAS TRIED TO BE ARGUED THAT THE FALSEHOOD IN ACCOUNTS CAN TAKE EITHER OF THE TW O FORMS ; (I) AN ITEM OF RECEIPT MAY BE SUPPRESSED FRAUDULENTLY ; (I I) AN ITEM OF EXPENDITURE MAY BE FALSELY (OR IN AN EXAGGERATED AM OUNT) CLAIMED, AND BOTH TYPES ATTEMPT TO REDUCE THE TAXABLE INCOME AND, THEREFORE, BOTH TYPES AMOUNT TO CONCEALMENT OF PART ICULARS OF ONE'S INCOME AS WELL AS FURNISHING OF INACCURATE PARTICUL ARS OF INCOME. WE DO NOT AGREE, AS THE ASSESSEE HAD FURNISHED ALL THE DETAILS OF ITS EXPENDITURE AS WELL AS INCOME IN ITS RETURN, WHICH 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 AUTHORITIES TO ACCEPT ITS CLAIM IN THE RETURN OR NOT. MERELY BE CAUSE THE ASSESSEE HAD CLAIMED THE EXPENDITURE, WHICH CLAIM WAS NOT AC CEPTED OR WAS NOT ACCEPTABLE TO THE REVENUE, THAT BY ITSELF WOULD NOT, IN OUR OPINION, ATTRACT THE PENALTY UNDER SECTION 271(1)(C ). IF WE ACCEPT THE CONTENTION OF THE REVENUE THEN IN CASE OF EVERY RETURN WHERE THE CLAIM MADE IS NOT ACCEPTED BY THE ASSESSING OFF ICER FOR ANY REASON, THE ASSESSEE WILL INVITE PENALTY UNDER SECT ION 271(1)(C). THAT IS CLEARLY NOT THE INTENDMENT OF THE LEGISLATU RE. 13. IN THIS BEHALF THE OBSERVATIONS OF THIS COURT MADE IN SREE KRISHNA ELECTRICALS V. STATE OF TAMIL NADU [2009] 23 VST 24 9 AS REGARDS THE PENALTY ARE APPOSITE. IN THE AFOREMENTIONED DECISIO N WHICH PERTAINED TO THE PENALTY PROCEEDINGS UNDER THE TAMI L NADU GENERAL SALES TAX ACT, THE COURT HAD FOUND THAT THE AUTHORI TIES BELOW HAD 18 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT FOUND THAT THERE WERE SOME INCORRECT STATEMENTS MAD E IN THE RETURN. HOWEVER, THE SAID TRANSACTIONS WERE REFLECT ED IN THE ACCOUNTS OF THE ASSESSEE. THIS COURT, THEREFORE, OB SERVED (PAGE 251) : 'SO FAR AS THE QUESTION OF PENALTY IS CONCERNED TH E ITEMS WHICH WERE NOT INCLUDED IN THE TURNOVER WERE FOUND INCORP ORATED IN THE APPELLANT'S ACCOUNT BOOKS. WHERE CERTAIN ITEMS WHIC H ARE NOT INCLUDED IN THE TURNOVER ARE DISCLOSED IN THE DEALE R'S OWN ACCOUNT BOOKS AND THE ASSESSING AUTHORITIES INCLUDES THESE ITEMS IN THE DEALER'S TURNOVER DISALLOWING THE EXEMPTION, PENALT Y CANNOT BE IMPOSED. THE PENALTY LEVIED STANDS SET ASIDE.' 14. THE SITUATION IN THE PRESENT CASE IS STILL BET TER AS NO FAULT HAS BEEN FOUND WITH THE PARTICULARS SUBMITTED BY THE ASSESSE E IN ITS RETURN. 15. THE TRIBUNAL, AS WELL AS, THE COMMISSIONER OF I NCOME-TAX (APPEALS) AND THE HIGH COURT HAVE CORRECTLY REACHED THIS CONC LUSION AND, THEREFORE, THE APPEAL FILED BY THE REVENUE HAS NO M ERITS AND IS DISMISSED. LOOKING TO THE TOTALITY OF THE FACTS AND CIRCUMSTANC ES OF THE CASE, WE DIRECT TO DELETE THE PENALTY SUSTAINED BY THE LD. CIT(A). 14. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED AND APPEAL OF THE ASSESSEE IS ALLOWED. SD/- SD/- DQY HKKJR HKKXPAN (KUL BHARAT) (BHAGCHAND) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 TH OCTOBER , 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S GLOBAL INSTITUTE OF TECHNOLOGY SOC IETY, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ACIT, CENTRAL CIRCLE-3, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 19 ITA 330/JP/2015 & 1029 & 1030/JP/2016 GLOBAL INSTITUTE OF TECHNOLOGY VS. ACIT 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 330/JP/2015 & 1029 & 1030/JP/201 6) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR