ACIT, New Delhi V. M/s. Intell Invofin India Pvt. Ltd., New Delhi

ITA 4363/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91002 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 30-04-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 17-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: ROHIT JAIN CA M S DEBASHREE
• Keywords: Earning of tax free income; Question of law; Difference of opinion; Onus to prove
• Section: 143(3); 14A

Judgement Text

ITA NO. 4363/DEL/2013 ASSTT.YEAR: 2009-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER ITA NO.4363/DEL/2013 ASSTT.YEAR: 2009-10 ACIT, VS M/S INTELL INVOFIN INDIA PVT. LTD., CIRCLE 12(1), A-60, NARAINA INDL. AREA, NEW DELHI. PHASE-I, NEW DELHI. (PAN: AAACH3144B) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI T. VASANTHAN, SR. DR RESPONDENT BY: SHRI ROHIT JAIN, CA, M S DEBASHREE, CA O R D E R PER C.M. GARG, JUDICIAL MEMBER THIS APPEAL OF THE REVENUE HAS BEEN DIRECTED AGAIN ST THE ORDER OF THE CIT(A)-III, NEW DELHI DATED 10.05.2013 IN APPEAL NO . 21/2012-13 FOR AY 2009-10. 2. THE SOLE GROUND RAISED BY THE REVENUE READS AS U NDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN CANCELLING THE PENALTY OF RS.15,54,462/- LEVIED BY THE AO U/S 271(1)(C) OF TH E INCOME TAX ACT, 1961. 3. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. AT THE VERY OU TSET, LD. COUNSEL OF THE ITA NO. 4363/DEL/2013 ASSTT.YEAR: 2009-10 2 ASSESSEE HAS DRAWN OUR ATTENTION TOWARDS PAPER BOOK FILED BY THE ASSESSEE SPREAD OVER 83 PAGES AND ANOTHER PAPER BOOK OF CASE LAWS SPREAD OVER 48 PAGES ALONG WITH THE DECISION OF ITAT DELHI E BENCH IN ITA NO. 4488/DEL/2013 DATED 24.4.2015 FOR AY 2009-10 AND SUBMITTED THAT I N THE SIMILAR SET OF FACTS AND CIRCUMSTANCES, THE DELETION OF PENALTY BY THE C IT(A) IN THE CASE OF ASSESSEES GROUP COMPANY I.E. ACIT VS M/S MEHROTRA INVOFIN INDIA PVT. LTD. HAS BEEN UPHELD BY THE TRIBUNAL DISMISSING THE APPE AL OF THE REVENUE AND THUS, THE PRESENT CASE OF THE ASSESSEE IS SQUARELY COVERE D IN FAVOUR OF THE ASSESEE BY THIS ORDER (SUPRA). 4. LD. DR SUPPORTED THE PENALTY ORDER AND SUBMITTED THAT THE CIT(A) DELETED THE PENALTY WITHOUT ANY COGENT AND JUSTIFIE D BASIS. HOWEVER, LD. DR DID NOT SERIOUSLY OBJECT TO THE FACT THAT IN THE CA SE OF M/S MEHROTRA INVOFIN INDIA PVT. LTD. (SUPRA), THE TRIBUNAL HAS UPHELD THE ORDE R OF THE CIT(A) DELETING THE PENALTY IN THE SIMILAR SET OF FACTS AND CIRCUMSTANC ES. 5. ON CAREFUL CONSIDERATION OF ABOVE, FROM VIGILANT READING OF THE ORDER OF THE TRIBUNAL IN THE CASE OF ACIT VS M/S MEHROTRA IN VOFIN INDIA PVT. LTD., WE NOTE THAT THE TRIBUNAL UPHELD THE ORDER OF THE CIT( A) APPROVING THE DELETION OF PENALTY BY THE FIRST APPELLATE AUTHORITY WITH FOLLO WING OBSERVATIONS AND CONCLUSION:- 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDER PASSED BY THE REVENUE AUTHORITY. WE ARE OF THE CONSIDERED THAT THE LD. ITA NO. 4363/DEL/2013 ASSTT.YEAR: 2009-10 3 CIT(A) HAS DELETED THE PENALTY IN DISPUTE BY THOROU GHLY EXAMINING THE WRITTEN STATEMENT FILED BY THE ASSEES SEE AND THE ORDER OF THE LOWER AUTHORITIES AS WELL AS THE VARIO US DECISION RENDERED BY THE HONBLE SUPREME COURT OF INDIA AND THE HONBLE HIGH COURT OF DELHI. 8.1 AFTER GOING THROUGH THE SUBMISSIONS FILED BY TH E ASSESSEE ALONGWITH THE CASE LAW AS WELL AS THE ORDE RS OF THE REVENUE AUTHORITIES, IT IS VERY RELEVANT TO GO THRO UGH THE RELEVANT PROVISIONS OF SECTION 271(1)(C), WHICH PRO VIDES FOR IMPOSITION OF PENALTY WHERE THE AO HAS TO BE SATISF IED THAT:- I) ANY PERSON HAD CONCEALED PARTICULARS OF HIS INCOME OR II) HAD FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. FU RTHER, AFTER INSERTION OF EXPLANATION 1 TO SECTION 271(1)(C), TH E ONUS IS ON THE ASSESSEE TO SHOW THAT THERE WAS NO INTENTION OF CONCEALMENT AND NOT ON THE REVENUE. 8.2 WE FIND THAT MENS REA WAS CONSIDERED TO BE A NECESSARY INGREDIENT FOR LEVY OF PENALTY AS LAID DO WN BY THE HONBLE SUPREME ITA NO. 4488/DEL/2013 4 COURT IN CI T VS ANWAR ALI (1970) 76 ITR 696. BUT AFTER THE INTRODUC TION OF EXPLANATION 1 TO SECTION 271(1)(C), THE HONBLE SUP REME COURT HAS HELD THAT THE REQUIREMENT OF PROOF OF MENS REA ON THE PART OF THE REVENUE, WOULD NO LONGER BE NECESSARY AS HEL D IN ADDL. CIT VS JEEVAN LAL SHAH (1994) 205 ITR 244 (SC) AND B.A. BALASUBRAMANIAM AND BROS. CO. VS CIT (1999) 236 ITR 977 (SC). THE ROLE OF THE EXPLANATION WAS ONLY TO PLACE THE BURDEN OF PROOF SQUARELY ON THE TAXPAYER. 8.3 WE NOTE THAT IN THIS CONTEXT TWO LANDMARK JUDGM ENTS WERE GIVEN BY APEX COURT IN DILIP N. SHROFF VS JOIN T CIT (2007) 2911TR 519 (SC) AND T. ASHOK PAI VS CIT (2007) 292 ITR 11 (SC), WHICH SPELL OUT MAINLY THE FOLLOWING RULES FO R THE PURPOSE OF PENALTY IMPOSABLE: (I) BOTH THE EXPRESSIONS 'CONCEALMENT OF INCOME' AN D 'FURNISHING OF INACCURATE PARTICULARS' INDICATE SOM E DELIBERATION ON THE PART OF THE ASSESSEE, THOUGH TH E WORD 'DELIBERATELY' AND THE WORD WILLFULLYARE NO LONGE R PART OF THE STATUE. (II) MERE OMISSION OR NEGLIGENCE WOULD NOT CONSTITU TE A DELIBERATE ACT OF SUPPRESSIIO VERI OR SUGGESTIO FAL SI. ITA NO. 4363/DEL/2013 ASSTT.YEAR: 2009-10 4 (III) PRIMARY BURDEN OF PROOF IS ON THE REVENUE. T HE STATUTE REQUIRES SATISFACTION ON THE PART OF THE AS SESSING OFFICER. HE IS' REQUIRED TO ARRIVE AT A SATISFACTION SO AS T O SHOW THAT THERE IS PRIMARY EVIDENCE TO ESTABLISH THAT THE ASS ESSEE HAD CONCEALED THE AMOUNT OR FURNISHED INACCURATE PARTIC ULARS AND THIS ONUS IS TO BE DISCHARGED BY THE DEPARTMENT. (IV) THE ASSESSING OFFICER WHILE CONSIDERING LEVY O F PENALTY SHOULD CONSIDER WHETHER THE ASSESSEE HAS BE EN ABLE TO DISCHARGE HIS PART OF THE BURDEN. HE SHOULD NOT BEG IN WITH THE PRESUMPTION THAT THE ASSESSEE IS GUILTY. (V) THOUGH PENALTY PROCEEDINGS UNDER THE INCOME-TA X LAW MAY NOT BE CRIMINAL IN NATURE, THEY ARE STILL Q UASI-CRIMINAL REQUIRING THE DEPARTMENT TO ESTABLISH THAT THE ASES SEE HAS CONCEALED HIS INCOME. (VI) IT HAS TO BE UNDERSTOOD THAT THE EXPLANATION TO SECTION 271(L)(C) IS AN EXCEPTION TO THE GENERAL RU LE RAISING A LEGAL FICTION BY WHICH THE BURDEN WHICH IS ORDINARI LY WITH THE DEPARTMENT IS SOUGHT TO BE PLACED ON THE ASSESSEE. THIS BURDEN ON THE ASSESSEE IS SUBJECT TO 'CONDITIONS PRECEDENT ', WHICH ARE REQUIRED TO BE SATISFIED BEFORE THE EXPLANATION COU LD BE APPLIED. IT WAS ALSO POINTED OUT AS HELD BY HONBLE SUPREME COURT IN K. C. BUILDERS VS AC/T {2004} {265 ITR 562 } {SC} THAT 'DELIBERATENESS' IS IMPLIED IN THE CONCEPT OF CONCEALMENT. 8.4 HOWEVER AFTER THE DECISION LAID DOWN IN DILIP N . SHROFF (SUPRA), T. ASHOK PAI (SUPRA) IN A DISPUTE U NDER CENTRAL EXCISE LAW THE APEX COURT IN THE CASE OF UOI VS DHA RAMENDRA TEXTILE PROCESSORS (2008) (306 ITR 277) (SC) HELD T HAT 'DEFAULT MERITED PENALTY WITHOUT HAVING TO CONSIDER AN INTEN D OF THE ASSESSEE TO EVADE TAX. THE MENS REA IS ESSENTIAL ON LY FOR MATTERS OF PROSECUTOR AND NOT PENALTY.' 8.5 THUS AFTER THE DECISION IN THE CASE OF DHARAMEN DRA TEXTILE PROCESSOR (SUPRA) 'MENS REA IS NOT NECESSAR Y TO BE PROVED BY REVENUE FOR CIVIL PENALTIES.' 8.6 HOWEVER WITH THE DECISION OF THE HONBLE SUPREM E COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCT S PVT. LTD (2010) (322 ITR 158) (SC), IT IS CLEAR THAT THE HON BLE SUPREME COURT BY GIVING THE RULING IN DHARMENDRA TEXTILE PR OCESSOR'S ITA NO. 4363/DEL/2013 ASSTT.YEAR: 2009-10 5 CASE (SUPRA) HAS NOT OVERRULED THEIR DECISION IN DI LIP N. SHROFF'S CASE EXCEPT FOR ITS MENTION OF MENS REA TH EREIN. ITA NO. 4488/DEL/2013 6 8.7 IT IS ALSO PERTINENT TO MENTION HERE THAT AFTER THE RULING OF DHARAMENDRA TEXTILE PROCESSOR, THE HONBL E SUPREME COURT HAS COME OUT WITH THE RULING IN 2 DIFFERENT C ASES NAMELY CIT VS ATUL MOHAN BINDAL (2009) (317 ITR1) AND UOI VS RAJASTHAN SPINNING & WEAVING MILLS (2010) (LGSTR66) (SC), AND WHERE THEY HAVE REITERATED AGAIN THAT 'THAT FOR APPLICABILITY OF SECTION 271(L)(C} THE CONDITION STATED THEREIN M UST EXIST.' 8.8 EVEN IN THE DECISION IN THE CASE OF (IT (LTU) V S. MTNL, ITA NO.626/2011 DATED 10.10.2011, THE HONBLE JURISDICTIONAL DELHI HIGH COURT HAS UPHELD THE SAME VIEW. 8.9 WE NOTE FROM THE ABOVE, IT IS VERY CLEAR THAT F OR IMPOSING PENALTY UNDER SECTION 271(1)(C), THE AO HA VE TO BE SATISFIED THAT: (A) ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOM E OR (B) ASSESSEE HAS FURNISHED INACCURATE PARTICULARS O F SUCH INCOME. 8.10 THUS, IN VIEW OF THE HON'BLE SUPREME COURT'S DECISION IN RELIANCE PETROPRODUCTS (SUPRA) IT IS CL EAR THAT THE LEGISLATURE DID NOT INTEND TO IMPOSE PENALTY ON EVE RY ASSESSEE WHOSE CLAIM WAS REJECTED BY THE ASSESSING OFFICER. WHAT IS SOUGHT TO BE COVERED UNDER SECTION 271(L)(C) IS CON CEALMENT OF 'PARTICULARS OF INCOME' OR FURNISHING OF 'INACCURAT E PARTICULARS OF INCOME' AND MAKING OF AN UNTENABLE CLAIM. 8.11 FROM THE VARIOUS JUDICIAL PRECEDENTS IT IS SEE N THAT THE FACTS AND CIRCUMSTANCES IN EACH CASE HAS TO BE SEEN IN THE CONTEXT AND THEN PENALTY PROVISION SHOULD BE APPLIE D TO SEE WHETHER THERE WAS THE CONCEALMENT OF PARTICULARS OF INCOME OR THE APPELLANT HAS FURNISHED INACCURATE PARTICULARS SO AS TO CALL FOR THE PENAL ACTION UNDER SECTION 271(1)(C). 8.12 WE FIND THAT ASSESSEE HAD EARNED A DIVIDEND I NCOME OF RS.5,14,50,508/-, WHICH IS AN EXEMPT INCOME. THE ASSESSEE ON ITS OWN DISALLOWED A SUM OF RS. 5,14,505, UNDER SEC TION 14A. HOWEVER, THE AO WAS NOT SATISFIED WITH THE APPELLAN T'S QUANTUM OF DISALLOWANCE AND HE ACCORDINGLY, APPLIED RULE BD AND COMPUTED THE DISALLOWANCE. ITA NO. 4363/DEL/2013 ASSTT.YEAR: 2009-10 6 8.13 IT IS ALSO AN ESTABLISHED PROPOSITION THAT THE ASSESSMENT PROCEEDINGS A PENALTY PROCEEDINGS ARE TW O DIFFERENT PROCEEDINGS. AN ISSUE MAY CALL FOR A ADDITION TO IN COME UNDER SECTION 143(3) OF THE I.T. ACT, BUT IN ORDER TO INV OKE A PENALTY, THE AO HAS TO WALK LITTLE EXTRA MILE TO PROVE THAT THERE IS FAILURE ON THE PART OF THE ASSESSEE TO 'CONCEAL THE PARTICU LARS OF INCOME' OR 'FURNISHING OF INACCURATE PARTICULARS. THE MERE NON ACCEPTANCE OF APPELLANT'S SUBMISSIONS AND WITHO UT ANY POSITIVE EVIDENCE FROM THE AO THAT ASSESSEE HAS CO NCEALED OR FURNISHING OF INACCURATE PARTICULAR' DIDN'T IPSO F ACTO WARRANT PENALTY UNDER SECTION 271(1)(C). IT IS ALSO SEEN TH AT IN THE PRESENT CASE THAT THE DIVIDEND INCOME EARNED BY THE APPELLANT IS TO THE TUNE OF RS.5,14,50,508 AND ASESSEE'S BELIEVE THAT NO DIRECT EXPENDITURE IS INCURRED IN EARNING THE EXEMP T INCOME, SHOWS THAT THERE IS A DIFFERENCE OF OPINION AND IT IS A VEXED QUESTION OF LAW. 8.14 KEEPING IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND CONSIDERABLE FOR CE IN THE FINDING OF THE LD. CIT(A) THAT IN THE PRESENT CASE THE CONDITIONS LAID DOWN IN SECTION 271(1)(C) ARE NOT BEING FULFIL LED, BECAUSE 'INACCURATE PARTICULARS' MEANS THE DETAILS FILED IN THE RETURN OF INCOME ARE 'NOT ACCURATE OR EXACT OR CORRECT ACCORD ING TO TRUTH OR ERRONEOUS. 8.15 IN THIS REGARD, LD. CIT(A) HAS RIGHTLY PLACED RELIANCE UPON THE DECISION OF THE OF THE HONBLE SU PREME COURT OF INDIA IN THE CASE OF RELIANCE PETRO PRODUCTS (SU PRA) WHEREIN IT WAS HELD THAT WHEN ASSESSEE FURNISHED ALL THE M ATERIAL IN THE RETURN WHICH WAS NOT FOUND TO BE INCORRECT, IT IS U PTO THE AUTHORITIES TO ACCEPT THE CLAIM IN THE RETURN OR NO T, BUT THE SAME COULDN'T BE CONSIDERED AS CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS. 8.16 KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES AS EXPLAINED ABOVE, WE ARE OF THE VIEW THAT LD. CIT(A) HAS RIGHTLY HELD THAT THERE IS NO CONCEALMENT OR INACCURATE PAR TICULARS OF INCOME WHERE THE ADDITION AND/OR DISALLOWANCE IS BA SED ON BONA-FIDE CLAIMS, DEBATABLE CLAIMS AND DIFFERENCE O F OPINION AS HELD INTER-ALIA BY THE HON'BLE SUPREME COURT IN A R ECENT JUDGMENT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. RELIANCE PETROPRODUCTS PVT. LTD. REPORTED IN 322 IT R 158 (SC) THE HEAD NOTES OF THE SAID CASE READS AS UNDER: ITA NO. 4363/DEL/2013 ASSTT.YEAR: 2009-10 7 'A GLANCE AT THE PROVISIONS OF SECTION 271(1)(C) OF THE INCOME TAX ACT 1961, SUGGESTS THAT IN ORDER TO BE C OVERED BY IT, THERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF T HE INCOME OF THE ASSESSEE. SECONDLY, THE ASSESSEE MUST HAVE FURN ISHED INACCURATE PARTICULARS OF HIS INCOME. THE MEANING O F THE WORD 'PARTICULARS' USED IN SECTION 271(1)(C) WOULD EMBRA CE THE DETAILS OF THE CLAIM MADE. WHERE NO INFORMATION GIV EN IN THE RETURN IS FOUND TO BE INCORRECT OR INACCURATE, THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PART ICULARS. IN ORDER TO EXPOSE THE ASSESSEE TO PENALTY, UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISION, THE PENALTY PROV ISION CANNOT BE INVOKED. BY NO STRETCH OF IMAGINATION CAN MAKING AN INCORRECT CLAIM TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHING WOULD DEPEN D UPON THE RETURN FILED BY THE ASSESSEE, BECAUSE THAT IS THE O NLY DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PARTICULARS OF H IS INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACCURATE, T HE LIABILITY WOULD ARISE. TO ATTRACT PENALTY, THE DETAILS SUPPLI ED IN THE RETURN MUST NOT BE ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDING TO THE TRUTH OR ERRONEOUS. WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIE D BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE THERE IS NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271 (L)(C). A MERE MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO FURNISHING INACCUR ATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. S UCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INAC CURATE PARTICULARS.' 8.17 WE FIND THAT THE ABOVE VIEW OF THE APEX COURT IN THE CASE OF RELIANCE PETROPRODUCT HAS BEEN FOLLOWED BY JURISDICTIONAL DELHI HIGH COURT AND ALSO DELHI TRIB UNAL IN NUMEROUS SUBSEQUENT CASES. 8.18 WE ARE OF THE VIEW THAT ADDITION HAS BEEN MADE BY THE AO ON THE BASIS OF DIFFERENCE OF OPINION, AS AC CORDINGLY TO HIM RULE 8D IS APPLICABLE AND WHEREAS AS PER THE AP PELLANT RULE 8D IS NOT APPLICABLE. 8.19 ACCORDINGLY, IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THA T IN THE PRESENT CASE, THE PENALTY UNDER SECTION 271(L)(C) I S NOT LEVIABLE AND IT DESERVES TO BE DELETED, HENCE, LD. CIT(A) HA S RIGHTLY ITA NO. 4363/DEL/2013 ASSTT.YEAR: 2009-10 8 DELETED THE PENALTY MADE BY THE ASSESSING OFFICER. OUR VIEW IS SUPPORTED BY THE DECISION OF THE HONBLE HIGH COURT IN THE CASE OF ACB INDIA LIMITED VS. ACIT IN ITA NO. 615/2014 A ND THE DECISION OF THE ITAT, DELHI BENCH IN THE CASE OF ES PIREINFOLABS (P) LTD. VS. ITO IN ITA NO. 4190 AND 4091/DEL/2013 DATED 6.6.2014. THEREFORE, WE DO NOT SEE ANY REASON TO IN TERFERE ITA NO. 4488/DEL/2013 10 WITH THE ORDER OF THE LD. CIT( A), ACCORDINGLY, WE UPHOLD THE SAME AND DECIDE THE ISSU E AGAINST THE REVENUE BY DISMISSING THE APPEAL FILED BY THE R EVENUE. 6. IN VIEW OF ABOVE, WE ARE INCLINED TO HOLD THAT I N SIMILAR SET OF FACTS AND CIRCUMSTANCES, THE TRIBUNAL HELD THAT THE ASSESSEE HAD EARNED DIVIDEND INCOME WHICH IS AN EXEMPT INCOME AND ASSESSEE, ON ITS OWN, DISALLOWED A SUM OF 1% OF DIVIDEND INCOME U/S 14A OF THE INCOME TAX ACT, 1961 . THE TRIBUNAL FURTHER HELD THAT THE AO WAS NOT SATISFIED WITH THE ASSESSE ES QUANTUM OF DISALLOWANCE AND HE ACCORDINGLY APPLIED RULE 8D OF THE INCOME TA X RULES 1962 AND COMPUTED THE DISALLOWANCE WHICH WAS ACCEPTED BY THE ASSESSEE TO AVOID FURTHER LITIGATION. THE TRIBUNAL ALSO HELD THAT THE ISSUE MAY CALL FOR ADDITION TO THE INCOME ASSESSED U/S 143(3) OF THE ACT BUT IN ORDER TO INVOKE THE PENALTY U/S 271(1)(C) OF THE ACT, THE AO HAS TO WALK A LITTLE E XTRA MILE TO PROVE THAT THERE IS FAILURE ON THE PART OF THE ASSESSEE TO CONCEAL THE PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS. WE ARE IN AGREEMENT WITH THE CONCLUSION OF THE COORDINATE BENCH OF THE TRIBUNAL THAT MERE N ON-ACCEPTANCE OF ASSESSEES SUBMISSIONS AND WITHOUT ANY POSITIVE EVIDENCE FROM THE AO THAT THE ASSESSEE HAS CONCEALED OR HAS FURNISHED INACCURATE PARTICULA RS OF ITS INCOME, DID NOT IPSO FACTO INVITE LEVY OF PENALTY U/S 271(1)(C) OF THE A CT. THE PRESENT CASE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE D ECISION OF ITAT DELHI E ITA NO. 4363/DEL/2013 ASSTT.YEAR: 2009-10 9 BENCH IN THE CASE OF ACIT VS M/S MEHROTRA INVOFIN I NDIA PVT. LTD. (SUPRA) AND HENCE, SOLE GROUND OF THE REVENUE BEING DEVOID OF M ERITS IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/05/2015. SD/- SD/- (R.S. SYAL) (CHANDRAMOHAN GARG ) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 1 ST MAY, 2015 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. C.I.T. 5. DR BY ORDER ASSTT. REGISTRAR