ACIT, Panipat V. Shri Virender Kumar Jain, Panipat

ITA 4151/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8130 (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: H
• Next Hearing Date: 16-02-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 22-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K CHAND
• Keywords: Question of law
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H DELHI BEFORE SHRI K.G. BANSAL AND SHRI GEORGE MATHAN ITA NO. 4151(DEL)/2009 ASSESSMENT YEAR: 2002-03 ASSTT. COMMISSIONER OF INCOME SHR I VIRENDER KUMAR JAIN, TAX, PANIPAT CIRCLE, VS. PROP. M/S VARDHMAN CREATIONS, PANIPAT. BEHIND GANDHI MANDI, SHIV NAGAR, PANIPAT. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI N.K. CHAND, SR. DR RESPONDENT BY : SHRI GURJEET SINGH , ADVOCATE ORDER PER K.G. BANSAL : AM THE ONLY GROUND TAKEN BY THE REVENUE IN THIS APPEAL IS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(APPEALS) HAS ERRED IN LAW IN DELETING THE PENALTY IMPOSED U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961, ON THE BASIS OF WRONG CLAI M OF DEDUCTION U/S 80- IB OF THE ACT. 2. BEFORE US, IT WAS SUBMITTED, WITHOUT PREJ UDICE TO THE RIGHT OF THE REVENUE TO CARRY THE MATTER IN APPEAL IF THOUGHT FIT, THAT THE ISSUE STANDS COVERED BY THE ORDER OF H BENCH OF THE TRIBUNAL IN THE CASE OF TEXTILE WORLD IN ITA NO. 4448(DEL)/2009 FOR A SSESSMENT YEAR 2002-03 DATED 22.1.2010, A COPY OF WHICH WAS PLACED BE FORE US. IT IS SEEN THAT ITA NO.4151(DEL)/2009 2 THE UNDERSIGNED WAS A CO-SIGNATORY OF THE ORDER . THE RELEVANT PORTION OF THE ORDER IS CONTAINED IN PARAGRAPH 6, WHICH IS REPRODUCED BELOW:- 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUB MISSION IN THE LIGHT OF MATERIAL PLACED BEFORE US. THE RETURN OF INCOME WAS FILED IN THE PRESENT CASE ON 31 ST OCTOBER, 2002, WHEREIN SUCH CLAIM WAS MADE. THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT ON THE ISSUE THAT WHETHER OR NOT ASSESSEE IS ENTITLED TO CLAIM DEDUCTION U/S 8 0IB ON DUTY DRAW BACK AND DEPB IS DATED 27 TH SEPTEMBER, 2006 (LIBERTY INDIA VS. CIT, 293 ITR 520) WHICH IS MUCH AFTER THE DATE OF FILING OF THE RETURN BY THE ASSESS EE. THEREFORE, IT CAN BE SAID THAT WHEN ASSESSEE PUT HIS CLAIM FOR DEDUCTION U/S 80IB ON DUTY DRAW BACK AND DEPB COMPONENTS THEN THE ISSUE WAS DEBATABLE AND, THEREFORE, THE AF OREMENTIONED DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. M/S ARISUDANA SPINNING MILLS LTD. (SUPRA ) WILL BE APPLICABLE AND IT IS TO BE HELD THAT IT IS NO T A FIT CASE WHERE LEVY OF CONCEALMENT PENALTY CAN BE HELD J USTIFIED. FOR THE SAKE OF CONVENIENCE THE RELEVANT OBSE RVATIONS OF HONBLE JURISDICTIONAL HIGH COURT FROM THE SAID DECISION ARE REPRODUCED BELOW:- THE AFORESAID FINDING OF FACT ARRIVED AT BY THE ITAT CANNOT BE SAID TO BE PERVERSE OR AGAINST THE MA TERIAL AVAILABLE ON THE RECORD. WHEN THE RETURNS OF INCOME WERE FILED, THE ISSUE WITH REGARD TO ENTITLEMENT OF ITA NO.4151(DEL)/2009 3 DEDUCTION U/S 80IA ON THE PROFITS DERIVED F ROM TRADING TURNOVER I.E., TRADING IN THE RAW WOOL AND KNITTED CLOTH, WAS DEBATABLE, AND THIS ISSUE WAS SETTLED WITH THE JUDGMENT OF THIS COURT IN M/S LIBERTY INDIA LTD. (SUPRA) WHICH HAS BEEN UPHELD BY THE SUPREME COURT IN M/S LIBERTY INDIA (SUPRA). THER EFORE, THE ITAT HAS RIGHTLY COME TO THE CONCLUSION T HAT THE ASSESSEE DID NOT DELIBERATELY OR CONSCIOUSLY CONC EALED THE TRUE PARTICULARS OF INCOME OR FURNISHED I NACCURATE PARTICULARS OF INCOME. THE JUDGMENT CITED BY T HE COUNSEL FOR THE APPELLANT IS NOT APPLICABLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WHERE THE PENALTY HAS BEEN DELETED ON THE BASIS OF AFORESAID FINDING OF FACT. IN VIEW OF THE AFORESAID FINDING OF FACT, IN OUR OPINION, NO SUBSTANTIAL QUESTION OF LAW IS ARI SING OUT OF THE ORDER OF THE ITAT. HENCE, THESE APPEA LS ARE DISMISSED. 2.1 THE MATERIAL FACT IN THIS CASE IS THAT THE RETURN OF INCOME WAS FILED ON 31.10.2002 DECLARING TOTAL INCOME OF RS. 10,54,070/-. THUS, THE RETURN WAS FILED PRIOR TO THE RENDERING OF THE DECISION BY HONBLE PUNJAB & HARYANA HIGH COURT, THE JURISDICTIONAL HIGH COURT, IN THE CASE OF LIBERTY INDIA, IN WHICH IT WAS HELD THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S 80IB ON EXPORT INCENTIVES, SUCH AS DUTY DRAW BACK OR DEPB BENEFIT. THIS DECISION WAS APPRO VED BY THE HONBLE SUPREME COURT SUBSEQUENTLY. HOWEVER, AT THE TI ME OF FILING OF THE RETURN CONTRARY DECISIONS WERE RENDERED BY DI FFERENT HIGH COURTS AND DIFFERENT BENCHES OF THE TRIBUNAL. THUS, THE FA CTS ARE IN PARI-MATERIA ITA NO.4151(DEL)/2009 4 WITH THE FACTS OF THE CASE OF TEXTILE WORLD ( SUPRA). RESPECTFULLY FOLLOWING THE ORDER OF THE COORDINATE BENCH IN TH AT CASE, IT IS HELD THAT THE LD. CIT(APPEALS) WAS JUSTIFIED IN DELETING TH E PENALTY. 3. IN THE RESULT, THE APPEAL IS DISMISSED. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 1 8 FEBRUARY, 2010. SD/- SD/- (GEORGE MATHAN) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE OF ORDER: 18 FEBRUARY, 2010. SP SATIA COPY OF THE ORDER FORWARDED TO:- 1. SHRI VIRENDER KUMAR JAIN, PANIPAT. 2. ASSTT. CIT, PANIPAT CIRCLE, PANIPAT. 3. CIT(A) 4. CIT, 5. DR, ITAT, NEW DELHI. ASSISTANT REGISTRA R.