ACIT, Panipat V. M/s.. K.T.M. India, Panipat

ITA 4447/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9603 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 21-01-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 23-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BK GUPTA
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Wrong claim
• Section: 80IB; 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: D NEW DELHI BEFORE SHRI D.R.SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 4447/DEL/2009 A.Y. 2004-05 ACIT, PANIPAT CIRCLE VS. M/S KTM INDIA PANIPAT ADJ. SECTOR 29, HUDA PANIPAT (APPELLANT) (RESPONDENT) APPELLANT BY : SH. B.K.GUPTA, SR.D.R. RESPONDENT BY : SH. ASHWANI TANEJA, ADV O R D E R PER D.R. SINGH, JUDICIAL MEMBER THE REVENUE HAS FILED THIS APPEAL AGAINST THE ORDER OF LDCIT(A) ON FOLLOWING GROUND. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE L DCIT(A) HAS ERRED IN DELETING THE PENALTY IMPOSED U/S 271(1)(C ) OF THE I.T.ACT, 1961 IMPOSED ON THE BASIS OF WRONG CLAIM O F DEDUCTION U/S 80-IB OF THE I.T.ACT, 1961. 2. BRIEFLY STATED THE FACTS RELATING TO THE ISSUE I NVOLVED IN THIS GROUND OF APPEAL ARE THAT THE ASSESSEE CLAIMED DEDUCTION U/S 80 IB OF EXPORT INCENTIVES I.E. DUTY DRAW BACK/DEPB OF RS. 2,51,48 ,410/-, WHERE AS, AO DISALLOWED THE SAME IN VIEW OF THE DECISION OF HON BLE APEX COURT AND 2 OTHER DECISIONS OF THE HIGH COURTS. ON APPEAL THIS DISALLOWANCE WAS CONFIRMED BY THE CIT(A). THEREAFTER THE A.O. INITI ATED PENALTY PROCEEDINGS AGAINST THE ASSESEE U/S 271(1)(C ) AND LEVIED THE PENALTY OF RS. 11,58,170/- U/S 271(1)(C ). 3. AGGRIEVED WITH THE ORDER OF THE A.O., THE ASSESS EE FILED AN APPEAL BEFORE THE LDCIT(A) AND THE LDCIT(A) DELETED THE PE NALTY AMOUNT LEVIED BY THE A.O. BY MAKING FOLLOWING OBSERVATIONS IN HIS O RDER. I HAVE CONSIDERED THE FACTS OF THE CASE AND THE SU BMISSIONS OF THE ASSESSEE. IN THE PRESENT APPEAL ALSO, TWO VIEWS WE RE CLEARLY POSSIBLE ON THE ISSUE OF DEDUCTION U/S 80IB WHICH WERE SUPPO RTED BY ORDERS OF THE HONBLE ITAT AS WELL AS DECISIONS OF HONBLE HIGH COURTS. FROM THE FACTS OF THE CASE, IT CANNOT BE SAID THAT ASSESSEE FURNISHED ANY INACCURATE PARTICULARS OR CONCEALED ANY PARTICU LARS AND THE CLAIM IS SUPPORTED BY A C.A.S CERTIFICATE. THE PE NALTY HAS BEEN LEVIED MERELY BECAUSE THE CLAIM WAS NOT ALLOWABLE B UT THE CLAIM WAS PROPERLY SUPPORTED BY THE CERTIFICATE FROM A CHARTE RED ACCOUNTANT AND ALL THE PARTICULARS WERE CORRECTLY FURNISHED RE LATING TO THE DEDUCTION U/S 80IB AND THE RECEIPT OF EXPORT INCENT IVES. THE FACTS AND CIRCUMSTANCES OF THE CASE UNDER CONSIDERATION A RE SIMILAR TO THE FACTS OF THE CASE OF M/S ORIENTAL RUG CO. (SUPRA) D ECIDED BY HONBLE ITAT AND OTHER CASES, WHERE IN SIMILAR CIRCUMSTANCE S PENALTY U/S 271(1)(C ) IS DELETED BY HONBLE ITAT, DELHI. HENC E RESPECTFULLY 3 FOLLOWING THE DECISION OF HONBLE ITAT IN THE CASE OF M/S ORIENTAL RUG CO. (SUPRA) AND OTHER CASES, THE PENALTY U/S 27 1(1)(C) IS DELETED. 4. AT THE OUTSET OF THE APPELLATE PROCEEDINGS LD.A. R. FOR THE ASSESSEE SUBMITTED THAT AN IDENTICAL ISSUE ON IDENTICAL FAC TS REGARDING LEVY OF PENALTY U/S 271(1)(C) ON ACCOUNT OF DISALLOWANCE U/ S 80 IA CAME UP FOR CONSIDERATION BEFORE THE HONBLE P&H HIGH COURT AN D THEIR LORDSHIPS IN AN UNREPORTED DECISION DELIVERED ON 19 TH NOVEMBER, 2009 IN THE CASE OF CIT, LUDHIANA VS. M/S ARISUDANA SPINNING MILLS LTD. IN ITA NO. 410 TO 412 OF 2009, UPHELD THE ORDER OF THE ITAT DELETING THE PENALTY BY OBSERVING AT PAGE 6 OF THE ORDER AS UNDER. THE AFORESAID FINDING OF FACT ARRIVED AT BY THE IT AT CANNOT BE SAID TO BE PERVERSE OR AGAINST THE MATERIAL AV AILABLE ON THE RECORD. WHEN THE RETURNS OF INCOME WERE FILED, THE ISSUE WITH REGARD TO ENTITLEMENT OF DEDUCTION U/S 80IA ON THE PROFITS DERIVED FROM TRADING TURNOVER I.E. TRADING IN THE RAW WOOL AND KNITTED CLOTH, WAS DEBATABLE, AND THIS ISS UE WAS SETTLED WITH THE JUDGMENT OF THIS COURT IN M/S LIBE RTY INDIA LTD. (SUPRA) WHICH HAS BEEN UPHELD BY THE SUPREME C OURT IN M/S LIBERTY INDIA (SUPRA). THEREFORE, THE ITAT HAS RIGHTLY COME TO THE CONCLUSION THAT THE ASSESSEE DID NOT DE LIBERATELY OR CONSCIOUSLY CONCEALED THE TRUE PARTICULARS OF IN COME OR FURNISHED INACCURATE PARTICULARS OF INCOME. 4 5. THE LD.D.R. FOR THE REVENUE EXCEPT PLACING RELIA NCE ON THE ORDER OF AO WAS NOT ABLE TO CONTROVERT THE SUBMISSIONS OF LD AR FOR THE ASSESSEE. IN THIS VIEW OF THE MATTER AND KEEPING IN VIEW THE DECISION OF HONBLE P&H HIGH COURT, WE ARE OF THE OPINION THAT AS THEIR LORDSHIPS IN THE DECISION (SUPRA) ON IDENTICAL FACTS DECIDED THE IDE NTICAL ISSUE IN FAVOUR OF ASSESSEE BY CONFIRMING THE ORDER OF ITAT DELETING T HE PENALTY LEVIED BY THE A.O. U/S 271(1)(C), HENCE THE THE WELL REASO NED AND WELL DISCUSSED ORDER OF LDCIT(A) DELETING THE IMPUGNED PENALTY AMO UNT BEING IN CONFORMITY WITH THIS DECISION (SUPRA) OF THEIR LORD SHIPS, DOES NOT CALL FOR ANY INTERFERENCE FROM OUR SIDE. ACCORDINGLY THE SA ME IS UPHELD AND THE GROUND OF APPEAL TAKEN BY THE REVENUE IS REJECTED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.1.2010 IM MEDIATELY AFTER CONCLUSION OF THE HEARING. (RC SHARMA) (D.R. SINGH) ACCOUNTANT MEMBER JUD ICIAL MEMBER DATED: 21 ST JANUARY,2010 *MANGA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CI T(A); 5.DR; 6.GUARD FILE BY ORDER DY. REGISTRAR