WELLMAC PLASTICS, MUMBAI V. DCIT 15(2), MUMBAI

ITA 4099/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0532 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 05-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 15-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO.4099/MUM/2016 (ASSESSMENT YEAR 2009-10) M/S.WELLMAC PLASTICS, A-302, TULSI TOWER, MG ROAD, GOREGAON(W), MUMBAI 400 062 PAN: AAAFW 5364M ..... APPE LLANT VS. THE DCIT- 15(2), MUMBAI 400 020 .... RESPON DENT APPELLANT BY : SHRI BHUPENDRA SHA H RESPONDENT BY : SHRI DURGA DUTT DATE OF HEARING : 23/05/2017 DATE OF PRONOUNCEMENT : 23/05/2017 ORDER PER G.S.PANNU,A.M: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERT AINING TO ASSESSMENT YEAR 2009-10 IS DIRECTED AGAINST AN ORDER PASSED BY CIT(A)-42, MUMBAI DATED 21/04/2016, WHICH IN TURN, ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 29/01/2014. 2. IN THIS APPEAL, ASSESSEE HAS RAISED THE FOLLOWIN G GROUNDS OF APPEAL. 1. IN THE FACTS AND THE CIRCUMSTANCES OF LAW, THE ASSESSING OFFICER ERRED LEVYING PENALTY U/S 271(1)(C) AMOUNTI NG TO RS. 2 ITA NO.7152/MUM/2013(AY. 2009-10) 1,16137/- IN RESPECT OF DISALLOWANCE OF INTEREST ON FD KEPT AS BANK GUARANTEE WITH ELECTRICITY DEPT AND BY WAY OF DISALLOWING DEDUCTION U/S. 80IB(4) BY TREATING THE LABOUR CHARG ES AS UNEXPLAINED INCOME. 2. IN THE FACTS AND THE CIRCUMSTANCES OF LAW, THE ASSESSING OFFICER ERRED LEVYING PENALTY U/S. 271(1)(C) IN RES PECT OF ADDITIONS AMOUNTING TO RS. 3,41,679/- INSTEAD OF AD DITION SUSTAINED BY THE COMMISSIONER OF INCOME TAX(A) AMOU NTING TO RS. 74,821/- ON WHICH PENALTY WAS INITIATED. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX(A) ERRED IN CONF IRMING THE SAME BY DISREGARDING SEVERAL JUDGMENTS CITED. 3. AT THE TIME OF HEARING, THE LD.REPRESENTATIVE FO R THE ASSESSEE HAS DISPUTED THE LEVY OF PENALTY OF RS.1,16,137/- ONLY IN RESPECT OF THE DENIAL OF DEDUCTION UNDER SECTION 80IB OF THE ACT WITH RESPEC T TO THE INTEREST ON FDRS KEPT AS BANK GUARANTEE WITH THE ELECTRICITY DEPARTM ENT FOR OBTAINING POWER CONNECTION. GROUND NO.2 ABOVE HAS NOT BEEN PRESSED AT THE TIME OF HEARING, THEREFORE, THE SAME IS DISMISSED AS NOT PRESSED. 4. AFTER HEARING THE RIVAL PARTIES, IN OUR VIEW, TH ERE IS NO CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME WITH IN THE MEANING OF UNDER SECTION 271(1)(C) OF THE ACT, QUA THE AFORESAID DIS ALLOWANCE, BECAUSE IT IS A CASE WHERE THE CLAIM FOR DEDUCTION HAS BEEN FOUND T O BE UNTENABLE. MERE DISALLOWANCE OF A CLAIM BY INTERPRETING THE PROVISI ONS OF A SECTION DOES NOT JUSTIFY THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT UNLESS IT CAN BE SHOWN THAT THE CLAIM WAS EITHER FANCIFUL OR NON-BONAFIDE. NO SUCH FINDINGS EMERGE FROM THE ORDERS OF THE AUTHORITIES BELOW AND, THERE FORE, IN TERMS OF THE RATIO OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE 3 ITA NO.7152/MUM/2013(AY. 2009-10) PETROPRODUCTS LTD., 322 ITR 158 (SC), THE PENALTY LEVIED UNDER SECTION 271 (1)(C) OF THE ACT IS HEREBY DIRECTED TO BE DELETED. WE HOLD SO. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF THE HEARING IN THE PRESENCE OF BOTH THE PARTIES ON 23/05/2017. SD/- SD/- (RAVISH SOOD) (G.S. PANNU) JUDICIAL MEMBER ACCOCUNTANT MEMBER MUMBAI, DATED 22/05/2017 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI