DCIT, Chandigarh V. M/s National Institute of Technical Teachers Training of Research, Chandigarh

ITA 386/CHANDI/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68371 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 10-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Assessee Lawyers: S K BHASIN
• Keywords: Wrong claim
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI T.R. SOOD, A.M AND MS. SUSHMA CHOWLA, JM ITA NO. 386/CHD/2013 ASSESSMENT YEAR : 2008-09 D.C.I.T. C-5(1) V M/S NATIONAL INSTITUTE OF CHANDIGARH TECHNICAL TEACHER TRAINING OF RESEARCH SECTOR 26 CHANDIGARH AAEFN 6008M (APPELLANT) (RESPONDENT) APPELLANT BY SHRI J.S. NAGAR RESPONDENT BY: SHRI S.K. BHASIN DATE OF HEARING 17.7.2013 DATE OF PRONOUNCEMENT 2.8.2013 O R D E R PER T.R.SOOD, A.M THIS APPEAL IS DIRECTED AGAINST THE ORDER DATED 24. 1.2013 OF THE LD. CIT(A), CHANDIGARH. 2 IN THIS APPEAL THE REVENUE HAS RAISED FOLLOWING G ROUNDS: 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING APPEAL OF THE ASSESSEE WITHOUT APPRECIATING THE FACTS OF THE CASE . 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A), HAS ERRED IN DELETING THE PENALTY AMOUN TING TO RS. 14.59 LACS WHICH WAS LEVIED BY THE ASSESSING OFFICE R U/S 271(1)(C) WITH RESPECT TO THE ADDITION OF RS. 35,72 ,000 MADE BY DISALLOWING THE PATENTLY WRONG CLAIM OF THE ASSE SSEE AS PER SECTION 43 B ON ACCOUNT OF UNPAID LEAVE ENCASHMEN T AND GRATUITY. 3. AFTER HEARING BOTH THE PARTIES WE FIND THAT IN T HIS CASE THE ASSESSING OFFICER HAS DISALLOWED A SUM OF RS. 35,72 ,000/- WHICH WAS CLAIMED BY THE ASSESSEE ON ACCOUNT OF PR OVISION FOR LEAVE ENCASHMENT AND GRATUITY U/S 43B OF THE ACT. PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WAS ALSO INITI ATED. IN 2 RESPONSE TO THE SHOW CAUSE NOTICE LEVY OF PENALTY, IT WAS STATED THAT MERE DISALLOWANCE OF EXPENDITURE WOULD NOT INDICATE THAT THE ASSESSEE HAS FILED INACCURATE PAR TICULARS. HOWEVER, THE ASSESSING OFFICER DID NOT AGREE WITH T HE SAME AND LEVIED THE PENALTY U/S 271(1)(C) OF THE ACT AT MINIMUM 100% AMOUNTING TO RS. 14,59,398/-. 4 ON APPEAL, PENALTY HAS BEEN DELETED BY THE LD. CI T(A) BY OBSERVING THAT THE ASSESSEE-SOCIETY WAS FUNCTIONING UNDER THE OVERALL CONTROL OF MINISTRY OF HUMAN RESOURCE DEVEL OPMENT, GOVERNMENT OF INDIA AND OFFICIALS APPOINTED BY THE GOVERNMENT. OF INDIA. FURTHER THE SOCIETY HAD INCUR RED A LOSS DURING THE YEAR AND DISALLOWANCE WAS MADE U/S 43B. THEREFORE THERE WAS NO INTENTION TO CONCEAL THE INCOME. 5 BEFORE US, THE LD. DR FOR THE REVENUE STRONGLY RE LIED ON THE ORDER OF THE ASSESSING OFFICER. 6 ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESS EE SUBMITTED THAT IT CANNOT SAID THAT ANY PARTICULARS HAD BEEN CONCEALED BECAUSE OF THE CLAIMS WERE DULY DISCLOSED IN THE RETURNS. MERELY BECAUSE CLAIM WAS DISCLOSED U/S 43 B IT CANNOT BE SAID THAT THE ASSESSEE CONCEALED THE PARTICULARS OF INCOME OR FILED INACCURATE PARTICULARS . IN THIS REGARD HE RELIED ON THE DECISION OF HON'BLE SUPREME COURT IN CASE OF CIT V. RELIANCE PETROPRODUCTS PVT LTD, 322 ITR 158 (S.C). 7 AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THAT THE HON'BLE APEX COURT IN CASE OF CIT V. RELIANCE PETRO PRODUCTS PVT LTD (SUPRA) HAS OBSERVED AS UNDER: 322 ITR 158 - A GLANCE AT THE PROVISIONS OF SECTIO N 271(1) (C) OF THE INCOME-TAX ACT, 1961, SUGGESTS TH AT IN ORDER TO BE COVERED BY IT, THERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICULARS OF HIS 3 INCOME. THE MEANING OF THE WORD PARTICULARS USE I N SECTION 271(1) (C) WOULD EMBRACE THE DETAILS OF THE CLAIM M ADE. WHERE NO INFORMATION GIVEN IN THE RETURN IS FOUND TO BE I NCORRECT OR INACCURATE, THE ASSESSEE CANNOT BE HELD GUILTY OF F URNISHING INACCURATE PARTICULARS. IN ORDER TO EXPOSE THE ASSE SSEE TO PENALTY, UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISION, THE PENALTY PROVISION CANNOT BE INVOKED. BY NO STRE TCH OF IMAGINATION CAN MAKING AN INCORRECT CLAIM TANTAMOUN T TO FURNISHING INACCURATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHING WOULD DEPEND UPON THE RETURN FILED BY TH E ASSESSEE, BECAUSE THAT IS THE ONLY DOCUMENT WHERE T HE ASSESSEE CAN FURNISH THE PARTICULARS OF HIS INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACCURATE, THE LIABILI TY WOULD ARISE. TO ATTRACT PENALTY, THE DETAILS SUPPLIED IN THE RET URN MUST NOT BE ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDING TO THE TRUTH OR ERRONEOUS. THE ABOVE CLEARLY SHOWS THAT ONCE PARTICULARS HAVE BEEN GIVEN IN THE RETURN WHICH ARE NOT FOUND TO BE INCORRECT T HEN IT CANNOT BE SAID THAT THE ASSESSEE HAS FILED INACCURATE PART ICULARS. IN CASE BEFORE US, ONLY CLAIM IN RESPECT OF LEAVE ENCA SHMENT AND GRATUITY WAS DISALLOWED BUT ALL THE PARTICULARS WER E DISCLOSED. WE ALSO HAVE TO KEEP IN OUR MIND THAT THE ASSESSEE IS A SOCIETY FUNCTIONING UNDER THE OVERALL CONTROL OF MI NISTRY OF HUMAN RESOURCE DEVELOPMENT, GOVERNMENT OF INDIA AND WHICH IS A NON-COMMERCIAL ENTERPRISE. THEREFORE, A LENI ENT VIEW NEEDS TO BE TAKEN. ACCORDINGLY WE ARE OF THE OPIN ION THAT IT W AS NOT A FIT CASE FOR LEVY OF PENALTY AND ACCORDING LY CONFIRM THE ORDER OF THE LD. CIT(A). 8 IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 2.8.2013 SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 2.8.2013 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR 4