M/s Vichara Technology India Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 4377/DEL/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0082 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 02-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 18-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA SENIOR
• Assessee Lawyers: VIDHI AGRAWAL CAS
• Keywords: Wrong claim
• Section: 10B; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K, JUDICIAL MEMBER ITA NO.4377/DEL./2013 (ASSESSMENT YEAR : 2008-09) M/S. VICHARA TECHNOLOGY INDIA PVT. LTD., VS. DCIT, CIRCLE 17 (1), E 186, GREATER KAILASH I, NEW DELHI. NEW DELHI 110 048. (PAN : AABCV2180N) (APPELLANT) (RESPONDENT) ASSESSEE BY : SMT. LALITA KRISHNAMURTHY AND SMT. VIDHI AGRAWAL, CAS REVENUE BY : SHRI P. DAM KANUNJNA, SENIOR DR DATE OF HEARING : 02.06.2015 DATE OF PRONOUNCEMENT : 03.06.2015 O R D E R PER GEORGE GEORGE K., JM : THIS APPEAL, AT THE INSTANCE OF THE ASSESSEE, IS DI RECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-1 9, NEW DELHI DATED 28.09.2012. THE RELEVANT ASSESSMENT YEAR IS 2008-09 . 2. THE ASSESSEE HAS RAISED FIVE GROUNDS OF APPEAL. ALL THE GROUNDS RELATE TO SOLITARY ISSUE WHETHER THE CIT (A) IS JUS TIFIED IN CONFIRMING THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE INCO ME-TAX ACT, 1961 AMOUNTING TO RS.11,09,506/-. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE AS FOL LOWS. ITA NO.4377/DEL./2013 2 THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF SOFTWARE DEVELOPMENT. FOR THE RELEVANT ASSESSMENT YEAR, RETURN OF INCOME WAS FILED ON 29.09.2008 DECLARING NIL TAXABLE INCOM E AFTER CLAIMING DEDUCTION U/S 10B OF THE ACT AMOUNTING TO RS.45,78, 919/-. IN THE COURSE OF THE SCRUTINY ASSESSMENT, DEDUCTION U/S 10B OF TH E ACT WAS RECOMPUTED. THE DEDUCTION WAS LIMITED TO RS.36,98,354/- AS AGAI NST THE CLAIM OF THE ASSESSEE AT RS.45,78,919/-. THE ASSESSING OFFICER WHILE RECOMPUTING THE EXEMPTION U/S 10B OF THE ACT HAD EXCLUDED INCOME FR OM OTHER SOURCES AMOUNTING TO RS.8,80,565/-. THE ASSESSING OFFICER WAS ALSO OF THE OPINION THAT TO THE EXTENT OF RS.8,80,565/-, THE AS SESSEE HAD CONCEALED / FURNISHED INACCURATE PARTICULARS OF ITS INCOME AND PENALTY U/S 271(1)(C) OF THE ACT NEEDED TO BE INITIATED. THEREAFTER, THE AS SESSING OFFICER VIDE NOTICE DATED 30.12.2010 GAVE AN OPPORTUNITY TO THE ASSESSEE TO SHOW CAUSE ON 14.01.2011 AS TO WHY PENALTY U/S 271(1)(C) OF TH E ACT SHOULD NOT BE IMPOSED ON RS.36,98,354/- FOR THE WRONG CLAIM OF EX EMPTION U/S 10B OF THE ACT. THE ASSESSING OFFICER AFTER EXAMINING THE REPLY OF THE ASSESSEE IMPOSED A PENALTY OF RS.11,09,506/-. THE RELEVANT PORTION OF THE ASSESSING OFFICERS ORDER COMPUTING THE LEVY OF PEN ALTY READS AS FOLLOWS:- AMOUNT ON WHICH PENALTY IS TO BE IMPOSED : RS.36 ,98,354/- TOTAL TAX SOUGHT TO BE EVADED : RS.11,09,506/- 100% OF THE TAX SOUGHT TO BE EVADED : RS.11,09,5 06/- 300% OF THE TAX SOUGHT TO BE EVADED : RS.33,28,5 18/- ITA NO.4377/DEL./2013 3 IN VIEW OF THE ABOVE, I THEREFORE IMPOSE PENALTY OF RS.11,09,506/- BEING 100% OF THE TAX SOUGHT TO BE E VADED. 4. AGGRIEVED BY THE LEVY OF PENALTY, ASSESSEE PREFE RRED AN APPEAL BEFORE THE CIT (A) WHO VIDE ORDER DATED 28.09.2012 DISMISSED THE APPEAL AND CONFIRMED THE PENALTY LEVIED BY THE ASSESSING O FFICER. 5. AGAINST THE ORDER OF THE CIT (A), ASSESSEE IS IN SECOND APPEAL BEFORE US. 6. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE COMPUTATION OF THE PENALTY IS WRONG AND, THEREFORE, THE ASSESSEE HAS P REFERRED THE RECTIFICATION APPLICATION U/S 154 OF THE ACT BEFORE THE CIT (A) A ND SAME WAS DISMISSED BY CIT (A) AND ON FURTHER APPEAL TO THE TRIBUNAL, T HE TRIBUNAL VIDE ITS ORDER DATED 28.01.2014 IN ITA NO.4125/DEL/2013 REST ORING THE MATTER TO THE CIT (A) FOR RECOMPUTING THE CORRECT AMOUNT OF P ENALTY. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE THE FIGURE OF PENALTY THAT IS IMPOSED IS NOT DISPUTED, THIS APPEAL ALSO NEEDS TO BE RESTORED TO THE CIT (A) FOR DE NOVO CONSIDERATION. 7. LD. DR DID NOT HAVE ANY OBJECTION FOR THIS APPEA L BEING RESTORED TO THE CIT (A). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE TRIBUNAL IN ITA NO.4125/DEL/2013 (SUPR A) HAD RESTORED THE ASSESSEES LEVY OF PENALTY WITH REGARD TO THE COMPU TATION TO THE FILE OF THE CIT (A). SINCE BOTH THE PARTIES ARE IN AGREEMENT T HAT THIS APPEAL ALSO IS TO ITA NO.4377/DEL./2013 4 BE RESTORED TO THE FILE OF THE CIT (A). WE DIRECT THE CIT (A) TO RECONSIDER THE ISSUE OF LEVY OF PENALTY AS ALSO CORRECTNESS OF THE COMPUTATION OF THE SAME. IT IS ORDERED ACCORDINGLY. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 3 RD DAY OF JUNE, 2015. SD/- SD/- (N.K. SAINI) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 3 RD DAY OF JUNE, 2015 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-19, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.