DCIT 9(2), MUMBAI V. NIKMO FINANCE P. LTD, MUMBAI

ITA 4354/MUM/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7818 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 20-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHREY KHANNA
• Assessee Lawyers: T A KHAN
• Keywords: Difference of opinion; Capital receipt
• Section: 143(3); 115JB

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL BENCH B MUMBAI BEFORE SHRI D.T.GARASIA , JM AND SHRI RAJESH KUMAR, AM I.T.A. NO. 4354 /MUM/20 1 4 ( / ASSESSMENT YEAR : 2 0 0 8 - 09 ) DY.COMMISSIONER OF INCOME T AX, 9(2), ROOM NO.218, 2 ND FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 / VS. M/S NIKMO FINANCE PVT.LTD, 215 - ATTRIUM, 10 TH FLOOR, NEXT TO MARRIOT HOTEL, ANDHERI KURLA ROAD, ANDHERI(E), MUMBAI - 400069 ./ PAN : AABCN9974G ( / APPELLANT) : ( / RESPONDENT ) / ASSESSEE BY : SHRI T A KHAN / REVENUE BY : SHRI SHREY KHANNA / DATE OF HEARING : 6.12.2017 / DATE OF PRONOUNCEMENT : 22 . 1 2 . 201 7 / O R D E R PER RAJESH KUMAR, A. M: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 30.4.2014 PASSED BY LD.CIT(A) - 20, MUMBAI WHEREIN THE REVENUE HAS CHALLENGED THE DELETION OF PENALTY OF RS.70,67,245/ - UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. 2. FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME ON 23.9.2008 DECLARING TOTAL INCOME AT RS.91,67,330/ - U/S 115JB OF THE INCOME 2 I.T.A. NO . 4354 /MUM/201 4 TAX ACT, 1961 . THE ASSESSMENT WAS COMPLETED U /S 143(3) OF THE ACT ON 30.11.2010 AT RS .2,42,54,970/ - UNDER NORMAL PROVISIONS AND AT RS.97,76,793/ - UNDER 115JB OF THE ACT. THE AO MADE ADDITION UNDER THE HEAD ENTERTAINMENT TAX OF RS.2,07,92,130/ - . IT WA S OBSERVED BY THE AO THAT THE ASSESSEE HAS CLAIMED INCENTIVE RECEIVED ON ACCOUNT OF ENTERTAINMENT TAX OF RS.3,05,19,281/ - AS CAPITAL RECEIPT. ACCORDINGLY THE AO CALLED FOR THE EXPLANATION FROM THE ASSESSEE REGARDING THIS CAPITAL RECEIPT. THE ASSESSEE FURNISHED DETAILS AND REPLY THERETO WHEREIN THE ASSESSEE CONTENDED THAT THE SUBSIDY CLA IMED WAS NOT ACTUALLY RECEIVED BY THE ASSESSEE BUT WAS A REMISSION BY WAY OF EXEMPTION AND THE SUBSIDY WAS NOT AN OPERATIONAL SUBSIDY. THE AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND HELD THAT THE AMOUNT OF RS.2,07,92,131/ - WAS REVENUE RECEIPT IN THE HANDS OF THE ASSESSEE. ACCORDINGLY, THE AO INITIATED PENALTY PROCEEDINGS, U/S 271(1)( C) OF THE ACT AND IMPOSED PENALTY OF RS.70,67,245/ - OF THE TAX SOUGHT TO BE EVADED. 3. AGGRIEVED BY THIS ORDER, THE ASSESSEE PREFERRED BEFORE THE LD.CIT(A) WHO VIDE PARA 3.3 AND 3.4 DELETED THE PENALTY LEVIED BY THE ASSESSING OFFICER AS UNDER : 3.3 I HAVE CONSIDERED THE FINDING OF THE ASSESSING OFFICER AND RIVAL SUBMISSION OF THE APPELLANT, CAREFULLY. I FIND THAT ISSUE UNDER APPEAL IS COVERED BY THE DECISIO N OF THE HON'BLE JURISDICTIONAL ITAT AND HON'BLE HIGH COURT IN THE CASE OF DCIT - 2(3) VS. VISTA ENTERTAINMENT PVT. LTD., LT.A.NO.S402/M/2011 ORDER DATED 25.0.2013 AND CIT - L', KOLHAPUR VS. 3 I.T.A. NO . 4354 /MUM/201 4 CHAFALKAR BROTHERS, PUNE LT.A. NO.1036/1147 OF 200S. FURTHER, IN THE APPELLANT'S OWN CASE, THE THEN LD. CIT(A) HAS DECIDED THIS ISSUE IN THE FAVOUR OF THE APPELLANT IN AY 2009 - 10 VIDE APPELLATE ORDER NO. CIT(A)20/DCIT - 9(2)/IT - 334/2011 - 12 DATED 12.03.2012. FURTHER, THIS ISSUE HAS ALSO BEEN DECIDED IN THE BACKGROUND OF DECISI ON OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE APPELLANT'S OWN CASE IN AY 2010 - 11 VIDE ORDER NO.CIT(A) - 20 - /DCIT - 9(2)/IT - 272/2012 - 13 DATED 09/10/2013, HENCE, IT IS VERY OBVIOUS THAT THIS ISSUE HAS BEEN DECIDED IN THE FAVOUR OF THE APPELLANT NOT ONLY BY THE CIT(A) BUT ALSO BY HON'BLE ITAT AND JURISDICTIONAL HON'BLE HIGH COURT, HENCE, IT CANNOT BE PRESUMED THAT THERE IS ANY CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. IT IS ALSO WORTHWHILE TO MENTION THAT DESPITE OF CONFIRMATIO N OF ADDITIONS IN QUANTUM APPEAL, PENALTY U/S.271(1)(C) CANNOT BE LEVIED UNLESS THERE IS CONCEALMENT OF FACTS AND FURNISHING OF INACCURATE PARTICULARS OF INCOME, VIDE ; CIT VS. BALRAJ SAHANI (1979) 119 ITR 36 (BORN) AND ATIONAL TEXTILES CORPORATION VS CIT (2001) 249 ITR 125 (CUI). IT IS ALSO RELEVANT TO MENTION THAT NO PENALTY CAN BE LEVIED ON ANY DEBATABLE ISSUE. THE CHARGE OF CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME DOES NOT COVER THE CASES WHERE MERELY THE OPINION OR INFERENCE OF TH E ASSESSING OFFICER IS AT VARIANCE WITH THE CLAIM, ASSERTION OR EXPLANATION OF THE ASSESSEE. THE PROPOSITIONS EMERGES FROM VARIOUS JUDICIAL DECISIONS OVER SUCH ISSUES ARE THAT A DIFFERENCE OF OPINION BETWEEN THE ASSESSEE AND THE ASSESSING OFFICER ON INTER PRETATION OF LEGAL PROVISION OR WITH REGARD TO LEGAL INTERFERENCES WHICH CAN BE DRAWN FROM THE FACTS ON RECORD CAN NEVER BE SUBJECT MATTER OF CONCEALMENT PENALTY. THE LD. A.R. HAS RIGHTLY PLACED HIS RELIANCE OVER THE CASES NAMELY: 1) CIT VS. CAPLLN POINT LA BORA TORIES L TO (2007) 293 ITR 524 (MAD.). 2) CIT VS. AJAIB SINGH & CO. (2002) 2531TR 630 (P&H) 3) CIT VS. SIVANANDA STEELS LTD. (2002) 2561TR 683 (MAD). 4) DURGA KARNAL RICE MILLS VS. CIT: (2004) 2651TR 25 (CAL): 5) CIT VS. SOHAN PAL (HUF) 2008 - 3021TR 262 (P&H): 6) CIT VS. BACARDI MARTINI INDIA LTD. (2007) 288 ITR 585 (DEL). 7) NUCHERN LTD. VS. DCIT (1994) 49 TT J 177 (DEL). 3.4 FURTHER, APPELLANT GETS SUPPORT FROM THE LATEST DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF C IT VS. RELI ANCE PETRO PRODUCTS (2010) 322 ITR 158 (SE). THUS, IN THE LIGHT OF THE ABOVE DISCUSSIONS AND AFTER CONSIDERING THE VARIOUS DECISION OVER THE ISSUES, UNDER REFERENCE, I FIND THAT LEVY OF PENALTY IN THIS CASE IS NOT JUSTIFIABLE, HENCE AO IS DIRECTED TO DELET E THE PENAL T Y OF RS.70,67,245/ - 4 I.T.A. NO . 4354 /MUM/201 4 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT RECORDS PLACED BEFORE US INCLUDING THE IMPUGNED ORDER AND THE VARIOUS CITATIONS. WE FIND FROM THE ORDER OF CIT(A) HAS DELETED THE PENALTY BY FOLLOWING THE OR DER OF HIS PREDECESSOR CIT(A) , TRIBUNAL AND ALSO THE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE . THEREFORE, WE HAVE NO LOCUS STANDI TO UNSETTLED THE SETTLED LEGAL POSITION AND HENCE, WE CONFIRM THE ORDER OF THE LD.CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. 5 . IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED ON 22 N D DEC, 2017. S D SD ( D.T.GARASIA ) ( RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 22. 12.2017 SR.PS:SRL: / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, T RUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI