The ACIT, Circle-2,, JAMNAGAR V. M/s. Harsh International, JAMNAGAR

ITA 408/RJT/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8581 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 04-12-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 31-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: PM MAHARSHI
• Keywords: Wrong claim
• Section: 143(3); 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL: RAJKOT BENCH, RAJKOT (BEFOR E SHRI ANIL CHATURVEDI , A.M. & SHRI KUL BHARAT, J.M. ) I. T. A. NO. 408 & 410 / RJT / 20 1 3 (A SSESSMENT YEAR: 2005 - 06 & 2007 - 08) INCOME TAX OFFICER, WARD - 2(1), JAMNAGAR V/S HARSH INTERNATIONAL, PLOT NO. 633 - 634, GIDC,PHASE - II, DARED, JAMNAGAR (APPEL LANT) (RESPONDENT) PAN: AADFH 1518B APPELLANT BY : SHRI AVINASH KUMAR, D.R. RESPONDENT BY : SHRI P.M. MAHARSHI, C.A ( )/ ORDER DATE OF HEARING : 4 - 12 - 2014 DATE OF PRONOUNCEMENT : 05 - 12 - 2014 PER SHRI ANIL CHATURVEDI,A.M. 1. THESE 2 APPEALS FILED BY THE ASSESSEE ARE AGAINST THE ORDER OF CIT(A), JAMNAGAR DATED 6.08.2013 FOR A.YS. 2005 - 06 & 2007 - 08. 2. BEFORE US, LD. A.R . AT THE OUTSET SUBMITTE D THAT THOUGH THE APPEALS ARE FOR T WO DIFFERENT ASSESSMENT YEARS BUT THE FACTS AND CIRCUMSTANCES OF BOTH THE CASES ARE IDENTICAL EXCEPT FOR THE AMOUNTS AND ASSESSMENT YEARS AND HE HAS COMMON SUBMISSIONS TO MAKE AND THEREFORE BOTH THE APPEALS CAN BE HEARD TOGETHER. SINCE THE ISSUE INVOLVED IN BOTH THE APPEALS ARE SIMILAR, THE APPEALS ARE TAKEN UP TOGETHER AND ARE BEING DISPOSED OF BY WAY OF A CONSOLIDATED ORDER. FOR THE SAKE ITA NOS. 408 & 410/RJT/2013 . A.Y S . 2005 - 06 & 2007 - 08 2 OF CONVENIENCE WE PROCEED WITH THE FACTS IN THE CASE OF ITA NO. 408/RJT/2013 FOR A.Y. 2005 - 06. 3. THE RELEVANT FACTS AS CU LLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 4. ASSESSEE IS PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS OF MANUFACTURING OF BRASS PARTS AND ITS COMPONENTS AND EXPORT OF THE SAME. ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 05 - 06 ON 21.12.20 05 DECLARING TOTAL INCOME OF RS. 7,96,565/ - WHEREIN ASSESSEE HAD CLAIMED EXEMPTION OF RS. 53,27,961/ - U/S 10B OF THE ACT. THE CLAIM OF DEDUCTION U/S. 10B WAS DISALLOWED BY THE A.O AGAINST WHICH THE MATTER WAS CARRIED BEFORE CIT(A) AND THEREA FTER BEFORE HON BLE TRIBUNAL. HON BLE VIDE ORDER IN ITA NO. 426/RJT/2008 RESTORED THE MATTER TO THE FILE OF A.O FOR VERIFICATION OF THE CLAIM OF ASSESSEE U/S.10B IN ACCORDANCE WITH LAW. PURSUANT TO THE DIRECTIONS OF HON BLE TRIBUNAL , A.O PASSED ORDER U/S 143(3) R.W.S. 2 54 OF THE ACT VIDE ORDER DATED 24.12.2010 AND GRANTED ASSESSEE THE EXEMPTION U/S 10B TO THE EXTENT OF RS. 3,06,073/ - AS AGAINST ITS CLAIM OF RS. 53,27,961/ - . O N THE DISALLOWANCE OF CLAIM OF SECTION 10B TO THE EXTENT OF RS. 51,22,815/ - A.O VIDE ORDER DATE D 21.12.2012 LEVIED PENALTY OF RS. 28,74,567/ - U/S 271(1)(C) OF THE ACT. AGGRIEVED BY THE ORDER OF A.O, ASSESSEE CARRIED THE MATTER BEFORE CIT(A) WHO VIDE ORDER DATED 06.08.2013 DELETED THE PENALTY LEVIED BY A.O. AGGRIEVED BY THE ORDER OF CIT(A), REVENUE I S NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING EFFECTIVE GROUND: - 1. THE CIT(A) ERRED IN LAW AND IN FACTS IN DELETING THE PENALTY OF RS. 18,74,567/ - LEVIED BY THE A.O U/S. 271(1)(C) OF THE IT ACT. 5. BEFORE US LD. D.R. SUBMITTED THAT THE ASSESSEE HAD C LAIMED DEDUCTION U/S 1 0B WHICH WAS NO T FULLY ALLOWED BY A.O AND THE ACTION OF A.O WAS ALSO CONFIRMED BY HON BLE TRIBUNAL . THE LD. D.R. FURTHER SUBMITTED THAT ASSESSEE WAS AWARE ABOUT THE NON ALLOWABILITY OF CLAIM DESPITE WHICH IT HAD CLAIMED THE DEDUCTIO N U/S 10B . HE FURTHER SUBMITTED THAT HAD THE CASE OF ASSESSEE NOT BEEN SELECTED FOR SCRUTINY THE WRONG CLAIM OF ASSESSEE WOULD NOT HAVE BEEN DETECTED. HE ITA NOS. 408 & 410/RJT/2013 . A.Y S . 2005 - 06 & 2007 - 08 3 THEREFORE SUBMITTED THAT ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME TO THE EXTENT OF THE CLAIM DISALLOWED AND THEREFORE THE A.O WAS FULLY JUSTIFIED IN LEVYING PENALTY U/S 271(1)(C). HE THUS SUPPORTED THE ORDER OF A.O. LD. A.R. ON THE OTHER HAND REITERATED THE SUBMISSIONS MADE BEFORE CIT(A). HE ALSO SUBMITTED THAT ON IDENTICAL FACTS IN THE CASE OF CIT VS. MARUTI PACKAGING, THE HON BLE GUJARAT HIGH COURT IN TAX APPEAL NO. 98/A/2011 HAS UPHELD THE DECISION OF TRIBUNAL IN DELETING THE PENALTY. HE ALSO PLACED ON RECORD THE COPY OF THE AFORESAID DECISION. HE FURTHER SUBMITTED THAT ASSESSEE HAS NOT M IS DECLARED ANY FACT AND ASSESSEE HAD FULLY DISCLOSED THE TOTAL INCOME IN THE RETURN OF INCOME AND THERE WAS NO CONCEALMENT ON THE PART OF ASSESSEE. HE FURTHER PLACED RELIANCE ON THE DECISION OF HON BLE APEX COURT IN THE CASE OF CIT VS. RELIANCE PETRO PROD UCTS PVT. LTD. (2010) 322 ITR 158. HE THUS SUPPORTED THE ORDER OF CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT ASSESSEE HAD CLAIMED DEDUCTION U/S 10B BUT THE CLAIM OF DEDUCTION U/S. 10B OF THE ASSESSEE WAS NOT ACCEPTED IN TOTO. WE FIND THAT CIT(A) WHILE DELETING THE PENALTY HAS GIVEN A FINDING THAT ASSESSEE HAS NEITHER SUBMITTED ANY WRONG PARTICULARS OF INCOME NOR HAS CONCEALED ANY INC OME AND HAS DISCLOSED ALL THE REQUIRED DETAILS . HE HAS FU RTHER NOTED FOR LEVYING PENALTY U/S. 271(1)(C) A.O IS REQUIRED TO PROVE BEYOND DOUBT THAT THE ASSESSEE HAS CONCEALED HIS INCOME WHICH THE A.O HAS FAILED TO PROVE IN THE PRESENT CASE. WE; FURTHER FIND THAT ON IDENTICAL FACTS , THE HON BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. MARUTI PACKAGING (SUPRA) HAS UPHELD THE ORDER OF TRIBUNAL WHEREBY THE HON BLE TRIBUNAL HAD DELETED THE PENALTY. BEFORE US, REVENUE HAS NOT BROUGHT ANY CONTRARY BINDING DECISION IN ITS SUPPORT NOR COULD POINT OUT ANY DISTINGUISHING F EATURE IN THE DECISIONS RELIED UPON BY LD. A.R . WE THEREFORE FIND NO REASON TO INTERFERE WITH THE ORDER OF CIT(A) AND THUS THIS GROUND OF REVENUE IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ITA NOS. 408 & 410/RJT/2013 . A.Y S . 2005 - 06 & 2007 - 08 4 ITA NO . 410/RJT/2013 FOR A.Y. 2007 - 08 . 8. BEFORE US, SINCE BOTH THE PARTIES HAVE SUBMITTED THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE ARE IDENTICAL TO THAT OF IN ITA NO. 408RJT/2013 WE THEREFORE FOR THE SIMILAR REASONS STATED HEREINABOVE WHILE DECIDING THE APPEAL OF THE ASSESSEE IN ITA NO. 408/RJT/2013 FOR A.Y. 05 - 06 AND FOR SIMILAR REASONS ALSO DISMIS S THE PRESENT GROUND OF REVENUE . THUS THE APPEAL OF REVENUE IS DISMISSED. 9. IN THE RESULT, BOTH THE APPEALS OF REVENUE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 05 - 12 - 201 4 . SD/ - SD/ - (KUL BHARAT ) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT . TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, RAJKOT