ITO, Panipat V. M/s. Kesri International, Panipat

ITA 4144/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8127 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 18-02-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 22-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANOOP KUMA R SINGH
• Keywords: Question of law
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUN AL DELHI BENCH D: NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.4143 & 4144/DEL/2009 ASSESSMENT YEAR : 2001-02 & 2002-03 INCOME TAX OFFICER WARD 4, PANIPAT VS. M/S. KESRI INTERNATIONAL SANOLI ROAD, VPO NIMBRI, PANIPAT (APPELLANT) (RESPONDENT) PAN : AAOFK 4594 N APPELLANT BY : SHRI ANOOP KUMA R SINGH, SR. DR RESPONDENT BY : SHRI GURJEET SINGH, CA O R D E R PER: C.L. SETHI, J.M. THESE TWO APPEALS, FILED BY THE REVENUE, ARE DIRE CTED AGAINST TWO SEPARATE ORDERS, BOTH DATED 21.08.2009, PASSED BY T HE LD. CIT(A) DELETING THE PENALTY AMOUNTING TO RS. 2,06,180/- AND 2,52,61 0/-, LEVIED BY THE AO U/S. 271(1)(C) OF THE INCOME TAX ACT, 196 (THE ACT ) FOR THE A.Y. 2001- 02 AND 2002-03 RESPECTIVELY. 2. IN THIS CASE, THE ASSESSEE CLAIMED DEDUCTION U/S . 80IB ON EXPORT INCENTIVE I.E. DUTY DRAWBACK/DEPB, WHICH WERE DISAL LOWED BY THE AO IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN TH E CASE OF CIT VS. STERLING FOODS INDIA 237 ITR 379 (SC). THE AO THEN INITIATED PENALTY ITA NO.4143 & 4144/DEL/2009 PAGE 2 OF 4 PROCEEDINGS U/S. 271(1)(C) OF THE ACT, AND HE ALSO FINALLY LEVIED THE PENALTY IN BOTH THE ASSESSMENT YEARS. 3. ON AN APPEAL, THE CIT(A) HAS DELETED THE PENALTY BY TAKING A VIEW THAT IN THE LIGHT OF THE VARIOUS DECISION OF THE TR IBUNALS AND HIGH COURTS, TWO VIEWS WERE CLEARLY POSSIBLE WITH REGARD TO THE ALLOWABILITY OF DEDUCTIONS U/S. 80 IB IN RESPECT OF EXPORT INCENTIV E. 4. HENCE, THE DEPARTMENT IS IN APPEAL BEFORE US. 5. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULL Y GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. 6. IN THE PRESENT CASE, IT IS NOT IN DISPUTE THAT T HE ASSESSEE HAS FURNISHED THE DETAILS OF THE ITEMS IN RESPECT OF WH ICH THE ASSESSEE CLAIMED DEDUCTION U/S. 80 IB OF THE ACT. IN THE PRESENT CAS E, THE RETURNS WERE FILED BY THE ASSESSEE ON 31.10.2001 AND 31.10.2002 FOR TH E ASSESSMENT YEARS 2001-02 AND 2002-03 RESPECTIVELY, WHERE THE ASSESSE E MADE A CLAIM OF DEDUCTION U/S. 80 IB ON DUTY DRAWBACK AND DEPB. TH E QUESTION AS TO WHETHER THE ASSESSEE IS ENTITLED TO CLAIM DEDUCTION U/S. 80 IB ON DUTY DRAWBACK AND DEPB HAS BEEN RECENTLY SETTLED BY THE HONBLE SUPREME COURT IN THE CASE OF LIBERTY INDIA VS. CIT (2009) 3 17 ITR 218 (SC). PRIOR TO THAT SEVERAL HIGH COURTS HAVE TAKEN A VIEW THAT DEDUCTION U/S. 80 IB IS AVAILABLE EVEN IN RESPECT OF DUTY DRAWBACK AN D DEPB. THE HONBLE ITA NO.4143 & 4144/DEL/2009 PAGE 3 OF 4 PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT LUDH IANA VS. ARISUDANA SPINNING MILLS LTD., LUDHIANA VIDE ORDER DATED 19.1 1.2009 IN ITA NO. 410 TO 412/2009 HAS TAKEN A VIEW THAT NO PENALTY U/ S. 271(1)(C) IS IMPOSABLE IN RESPECT OF CLAIM ON EXPORT INCENTIVE U /S. 80 IA OF THE ACT. WHILE TAKING THIS VIEW, THE HONBLE PUNJAB & HARYAN A HIGH COURT HAS ALSO CONSIDERED THE DECISION OF HONBLE APEX COURT IN THE CASE OF LIBERTY INDIA VS. CIT, WHERE THE DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF LIBERTY INDIA VS. CIT 293 ITR 250 (P&H) WAS UPHELD. THE RELEVANT OBSERVATION OF THE HONBLE PU NJAB & HARYANA HIGH COURT IN THE CASE OF CIT LUDHIANA VS. ARISUDANA SPI NNING MILLS LTD., LUDHIANA (SUPRA) IS REPRODUCED BELOW: THE AFORESAID FINDING OF FACT ARRIVED AT BY THE ITAT CANNOT BE SAID TO BE PERVERSE OR AGAINST THE MATERIAL AVAILABLE ON THE RECORD. WHEN THE RETURNS OF INCOME WERE FILED, THE ISSUE WITH REGARD TO THE ENTITLEMENT OF DEDUCTION U/S. 80 IA ON THE PROFITS DERIVED FROM TRADING TURNOVER I.E. TRADING IN THE RAW WOOL AND KNITTED CLOTH, WAS DEBTABLE, AND THIS ISSUE WAS SET TLED WITH THE JUDGMENT OF THIS COURT IN M/S. LIBERTY IND IA LTD. (SUPRA) WHICH HAS BEEN UPHELD BY THE SUPREME COURT IN M/S. LIBERTY INDIA (SUPRA). THEREFORE, THE ITAT HA S RIGHTLY COME TO THE CONCLUSION THAT THE ASSESSEE DI D NOT DELIBERATELY OR CONSCIOUSLY CONCEALED THE TRUE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTI CULARS OF INCOME. THE JUDGMENT CITED BY THE COUNSEL FOR T HE APPELLANT IS NOT APPLICABLE IN THE FACTS AND CIRCUM STANCES OF THE CASE, WHERE THE PENALTY HAS BEEN DELETED ON THE BASIS OF AFORESAID FINDING OF FACT. IN VIEW OF THE AFORESAID FINDING OF THE FACT IN OUR OPINION NO SUBSTANTIAL QUESTION OF LAW IS ARISING O UT OF ITA NO.4143 & 4144/DEL/2009 PAGE 4 OF 4 THE ORDER OF THE ITAT. HENCE, THESE APPEALS ARE DISMISSED. 7. IN VIEW OF THE ABOVE DISCUSSIONS, WE FIND NO INF IRMITY IN THE ORDER OF THE LD. CIT(A), WHILE DELEING THE PENALTY LEVIED BY THE AO U/S. 271(1)(C) IN RESPECT OF ASSESSEES CLAIM OF DEDUCTI ON U/S. 80 IB ON EXPORT INCENTIVE. THE ORDER OF THE CIT(A) IS, THEREFORE, UPHELD IN BOTH THE YEARS. 8. IN THE RESULT, THESE TWO APPEALS, FILED BY THE R EVENUE ARE DISMISSED. 9. THIS DECISION IS PRONOUNCED IN THE OPEN COURT ON 18 TH FEBRUARY, 2010. SD/- ( SHAMIM YAHYA) ACCOUNTANT MEMBER SD/- (C.L. SETHI) JUDICIAL MEMBER DATED: 18 TH FEBRUARY, 2010 *NITASHA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. BY ORDER DEPUTY REGISTRAR