M/s. HCIL ARSSPL TRIVENI (JV), Delhi V. ACIT, New Delhi

ITA 4579/DEL/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7042 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-11-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 15-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SALIL MISHRA
• Keywords: Depreciation; Wrong claim; Bonafide mistake
• Section: 80HHC; 80IB; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI C BENC H BEFORE SHRI C.L. SETHI, JM & SHRI A.N. PAHUJA, AM ITA NOS.4579 & 4580 /DEL/2010 ASSESSMENT YEAR:2007-08 1.M/S HCIL ARSSPL TRIVENI (JV) AND 2.M/S HCIL KALINDEE ARSSPL (JV), 113-A, KAMLA NAGAR, DELHI-110007 V/S . AC.I.T.,CIRCLE-38(1), NEW DELHI [PAN NO.: AADFH 8758 B] ASSESSEE BY SHRI K. SAMPATH, AR REVENUE BY SHRI SALIL MISHRA, DR DATE OF HEARING 09-11-2011 DATE OF PRONOUNCEMENT 25-11-2011 O R D E R A.N.PAHUJA:- THESE TWO APPEALS FILED ON 15.10.2010 BY THE RESPE CTIVE ASSESSEES AGAINST TWO SEPARATE ORDERS DATED 27 TH JULY, 2010 OF THE LEARNED CIT(A)-XXVIII, NEW DELHI, RAISE THE FOLLOWING SIMIL AR GROUNDS:- I) THE PENALTY ORDER PASSED BY THE LEARNED ASSESSI NG OFFICER IS BAD BOTH IN LAW AND FACTS OF THE CASE. II) THAT THE LEARNED ASSESSING OFFICER BASED THE PE NALTY ORDER ARBITRARILY WITHOUT CONSIDERING THE FACTS AND CIRCU MSTANCES OF THE CASE. III) IT IS PRAYED THAT THE PENALTY IMPOSED MAY PLEASE BE DELETED. ITA NOS.4579 & 4580 /DEL/2010 2 2. SINCE, SIMILAR ISSUES WERE INVOLVED, THESE APPEA LS WERE HEARD SIMULTANEOUSLY FOR THE SAKE OF CONVENIENCE AND ARE BEING DISPOSED OF THROUGH THIS COMMON ORDER. 3. FACTS, IN BRIEF, AS PER RELEVANT ORDERS IN THE C ASE OF M/S HCIL ARSSSPL TRIVENI (JV), A JOINT VENTURE OF M/S HARISH CHANDRA (INDIA) LTD.,M/S ARSS INFRASTRUCTURE PROJECTS PVT. LTD. AND M/S TRIVENI E NTERPRISES CONSTITUTED IN TERMS OF AN AGREEMENT ENTERED ON 28.9.2004., ARE THAT E-R ETURN DECLARING NIL INCOME FILED ON 01.11.2007 BY THE ASSESSEE, A CIVIL CONTRA CTOR AFTER BEING PROCESSED U/S 143(1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) WAS SELECTED FOR SCRUTINY WITH THE SERVICE OF A NOTICE ISSUED U/S 143(2) OF THE ACT ON 16 TH SEPTEMBER, 2008. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER (IN A.O. IN SHORT) NOTICED THAT T HE ASSESSEE CLAIMED DEDUCTION OF ` ` 41,83,622/- U/S 80IA OF THE ACT IN TERMS OF A REPOR T IN FORM NO. 10CCB WHILE THE ASSESSEE SUB-CONTRACTED THE WORK TO M/S HCIL. SINCE THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF INFRASTRUCTURE FOR RAILW AYS AND DID NOT EXECUTE THE WORK ON ITS OWN WHILE M/S RAIL VIKAS NIGAM LTD. AND M/S RITES LTD. CLAIMED DEDUCTION U/S 80IA OF THE ACT IN RESPECT OF THE SAI D PROJECT, THE AO DISALLOWED THE CLAIM FOR DEDUCTION U/S 80IA OF THE ACT WHILE REFER RING TO EXPLANATION BELOW THE PROVISIONS OF SEC. 80IA(13) OF THE ACT. INTER ALIA, PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE ALSO INITIATED FOR FURNIS HING INACCURATE PARTICULARS OF INCOME. 3.1 FOR SIMILAR REASONS, DEDUCTION OF ` 70,07,615/- U/S 80IA OF THE ACT WAS DISALLOWED IN THE CASE OF M/S HCIL KALINDEE ARSSPL (JV), A JOINT VENTURE OF M/S HARISH CHANDRA (INDIA) LTD.,M/S KALINDEE RAIL NIRMA N (ENGINEERS) LTD. &M/S ARSS INFRASTRUCTURE PROJECTS PVT. LTD. CONSTITUTED IN TERMS OF AN AGREEMENT EXECUTED ON 22.10.2005 AND PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME. ITA NOS.4579 & 4580 /DEL/2010 3 4. THESE ASSESSEES DID NOT FILE ANY APPEAL AGAINST THE FINDINGS OF THE AO. SUBSEQUENTLY, IN RESPONSE TO A SHOW CAUSE NOTICE IS SUED BEFORE LEVY OF PENALTY, THE ASSESSEES REPLIED THAT THE ASSESSEE WAS ADVISED TO CLAIM DEDUCTION U/S 80IA(4) OF THE ACT SINCE THE NATURE OF THEIR ACTIVI TIES FELL UNDER THE WORK OF INFRASTRUCTURE FACILITY AND ONE OF THE PARTNERS IN JOINT VENTURE WAS ALLOWED DEDUCTION U/S 80IA(4) OF THE ACT IN THE AYS 2006-07 & 2007-08. SINCE THEIR CASE WAS COVERED WITHIN THE EXPLANATION BELOW SUB- SECTION 13 OF SECTION 801A OF THE ACT ,INSERTED BY THE FINANCE ACT,2007 W.E.F 1.4.2000, IMMEDIATELY ON BEING POINTED OUT THEY ACCEPTED THE VIEW OF THE AO AND PA ID TAX ACCORDINGLY. HOWEVER, THERE WAS NO INTENTION TO FURNISH ANY INACCURATE PA RTICULARS OF INCOME , THE ASSESSEES POINTED OUT. INTER ALIA, THE ASSESSEES R ELIED UPON THE DECISIONS IN CIT VS. S. DHANABAL (2009) 211 TAXATION 128 (DELHI)& C IT VS. LOTUS TRANS TRAVELS (P) LTD. (2009) 211 TAXATION 481 (DELHI) AND PLEADE D THAT DEDUCTION U/S 80IA HAVING BEEN CLAIMED DUE TO A BONAFIDE MISTAKE, PENA LTY PROCEEDINGS SHOULD BE DROPPED. HOWEVER, THE AO DID NOT ACCEPT THE CONTEN TIONS OF THE ASSESSEE AND IMPOSED A PENALTY OF ` `13,52,107/- @100% OF THE TAX SOUGHT TO BE EVADED F OR FURNISHING INACCURATE PARTICULARS OF INCOME FOR CLA IMING DEDUCTION U/S 80IA OF THE ACT. 4.1 LIKEWISE IN THE CASE OF HCIL-KALINDEE-ARSSPL, THE AO IMPOSED A PENALTY OF ` 23,02,665/- , RELYING, INTER ALIA, ON THE DECISION IN THE CASE OF SOM ENGG. CORPORATION VS. CIT 277 ITR 92 (ALL.); MADANLAL KIS HORILAL VS. CIT,277 ITR 209 (ALL.) ; AND UNION OF INDIA VS. DHARMINDRA TEXTILE PROCESSORS,306 ITR 277 (SC). 5. ON APPEAL, THE LEARNED CIT(A) UPHELD THE LEVY OF PENALTY IN THE FOLLOWING TERMS IN THE CASE OF M/S HCIL ARSSPL TRIVENI(JV): 6. THE QUESTION FOR CONSIDERATION IS WHETHER THE CLAIM FOR DEDUCTION WAS BONA FIDE. IN THE ASSESSMENT ORDER, THE AO HAS OBSERVED THAT THE ASSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE WIT H THE EVIDENCE THAT HIS CLAIMS ARE TRUE & BONAFIDE. THE AO HAS FURTHER OBSERVED THAT THE WAS NOT ENTITLED TO CLAIM THIS DEDUCTION AB-IN ITIO AS IT WAS NEITHER THE OWNER OF THIS INFRASTRUCTURE NOR TH E INFRASTRUCTURE BELONGS TO IT. IT HAS MERELY DEVELOPED THE PROJECT ON CONT RACTUAL BASIS. SO THE ITA NOS.4579 & 4580 /DEL/2010 4 ELIGIBILITY FOR CLAIMING DEDUCTION DOES NOT ARISE F ROM THE BEGINNING ITSELF. HAD THE CASE NOT BEEN SELECTED FOR SCRUTINY UNDER C ASS, THIS DEDUCTION WOULD HAVE OTHERWISE GONE TO THE ASSESSEE CAUSING LOSS OF REVENUE BECAUSE OF WRONG INADMISSIBLE CLAIM OF D EDUCTION. 7. CONSIDERING THE FACTS MENTIONED IN THE ASSESSMEN T ORDER, THE APPELLANT WAS CLEARLY NOT ELIGIBLE FOR DEDUCTION U/ S 801A. SECTION 801A(4) IS AS FOLLOWS:- THIS SECTION APPLIES TO- I) ANY ENTERPRISE CARRYING ON THE BUSINESS /OF (I) DEV ELOPING OR (II) OPERATING AND MAINTAINING OR (III) DEVELOPING, OPER ATING AND MAINTAINING/ ANY INFRASTRUCTURE FACILITY WHICH FULF ILLS ALL THE FOLLOWING CONDITIONS, NAMELY- THE EXPLANATION BELOW SECTION (13) IS AS FOLLOWS: FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED TH AT NOTHING CONTAINED IN THIS SECTION SHALL APPLY TO A PERSON W HO EXECUTES A WORKS CONTRACT ENTERED INTO WITH THE UNDERTAKING OR ENTERPRISE, AS THE CASE MAY BE. 8. THE APPELLANT IS NOT A DEVELOPER IN TERMS OF S ECTION 80IA(4) AND IS NOT ELIGIBLE FOR DEDUCTION U/S 80IA. WHATEVER D OUBT MAY HAVE EXISTED IN THIS REGARD STOOD CLARIFIED BY THE INSER TION OF THE EXPLANATION BELOW SECTION 80IA(13) W.E.F. 01.04.200 0.THE APPELLANT HAS NOT FILED ANY QUANTUM APPEAL AGAINST THE REJE CTION OF HIS CLAIM FOR DEDUCTION U/S 80IA AND THE ISSUE STANDS CONCLUD ED AGAINST THE APPELLANT. IN FACT, THERE CAN BE NO DISPUTE THAT TH E APPELLANT IS NOT ELIGIBLE FOR CLAIMING THIS DEDUCTION. IN THE ASSESS MENT ORDER, THE AO HAS GIVEN DETAILED REASONS WHY THERE IS NO QUESTION OF ALLOWING THIS DEDUCTION IN SUCH A CASE. AS DISCUSSED ABOVE, WHATE VER DOUBT MAY HAVE EXISTED IN THIS REGARD HAD BEEN PUT TO RES T BY THE INTRODUCTION OF THE EXPLANATION BELOW SECTION 80IA (13). 9. THE EXPLANATION BELOW SECTION 80IA(13) WAS INSER TED BY THE FINANCE ACT,2007 W.E.F 1.4.2000.THE FINANCE BILL 20 07 BECAME THE ACT ON RECEIVING PRESIDENTIAL ASSENT ON 11.5.2007 ( 2007) 291 ITR (ST.) 1). THE APPELLANT FILED HIS RETURN ON 01.11. 2007. THEREFORE, THE EXPLANATION WAS ON THE STATUTE BOOK WHEN THE AS SESSEE FILED HIS RETURN. AT THAT TIME, THE CLAIM MADE BY THE AS SESSEE WAS NOT A DEBATABLE ISSUE AT ALL. IN VIEW OF THESE FACTS, TH E APPELLANTS ARGUMENT THAT HIS CLAIM WAS FOR DEDUCTION WAS BONA FIDE, IS ENTIRELY UNACCEPTABLE. THE CLAIM MADE IN THE STATEMENT OF F ACTS THAT THIS IS ITA NOS.4579 & 4580 /DEL/2010 5 A BONAFIDE MISTAKE ON THE PART OF THE APPELLANT AND NOT DELIBERATE MISTAKE COMMITTED BY THE APPELLANT IS ALSO UNACCEPTABLE. THE APPELLANT WAS CLEARLY NOT ELIGIBLE FOR DEDUCTION U/ S 801A IN VIEW OF THE CONDITIONS SPECIFIED IN SECTION 80A(4). WHATEV ER DOUBT MAY HAVE EXISTED IN THIS REGARD STOOD CLARIFIED BY THE INSERTION OF THE EXPLANATION BELOW SECTION 801A(13) W.R.E.F. 01.04.2 000. THIS EXPLANATION WAS ON THE STATUTE BOOK WHEN THE ASSESS EE FILED HIS RETURN. IT IS, THEREFORE, CLEAR THAT THE CLAIM FOR DEDUCTION U/S 801A WAS NOT BONAFIDE AND NOT BASED ON ANY REASONABLE IN TERPRETATION OF LAW. 10. THE ABOVE DISCUSSION SHOWS THAT THIS IS NOT A C ASE WHERE THE EXPLANATION GIVEN WAS BONA FIDE AND THERE WAS FULL DISCLOSURE OF FACTS.THE PROVISIONS OF EXPLANATION 1(B) TO SECTION 271(1)(C) ARE APPLICABLE BECAUSE THE ASSESSEE HAS OFFERED AN EXPL ANATION BEFORE THE ASSESSING OFFICER, WHICH HE IS NOT ABLE TO SUBS TANTIATE AND HAS ALSO FAILED TO PROVE THAT SUCH EXPLANATION IS BONA FIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM. IN VIEW O F THESE FACTS, THE PENALTY IMPOSED U/S 271(1)(C) DESERVES TO BE UP HELD. 11. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS DISCUSSED VARIOUS JUDICIAL DECISIONS ON THIS SUBJECT. THE IM POSITION OF PENALTY IS ALSO SUPPORTED BY THE FOLLOWING JUDICIAL DECISIO NS. I) CIT V ESCORTS FINANCE LTD.,183 TAXMAN 453(DEL) EVEN IF THERE IS NO CONCEALMENT OF INCOME OR FURNI SHING OF INACCURATE PARTICULARS, BUT ON THE BASIS THEREOF THE CLAIM WHI CH IS MADE IS EX FACIE BOGUS, IT MAY STILL ATTRACT PENALTY PROVISION. CASE S OF BOGUS HUNDI LOANS OR BOGUS SALES OR PURCHASES HAVE BEEN TREATED AS TH AT OF CONCEALMENT OR INACCURACY IN PARTICULARS OF INCOME BY THE JUDICIAL PRONOUNCEMENTS (SEE KRISHNA KUMARI CHAMANLAL V. CIT [1996] 217 ITR 645 1 (BOM.), RAJARAM & CO. V. CIT [1992] 193 ITR 614 (GUJ.) AND BEENA META LS V. CIT [1999] 240 ITR 222 2 (KER.). 14. IN THE PRESENT CASE, WE HAVE TO EXAMINE AS TO WHET HER THE CLAIM MADE UNDER SECTION 35D OF THE ACT WAS BOGUS OR IT WAS A BONA FIDE CLAIM. THE ASSESSEE PLEADED BONA FIDE, AS ACCORDING TO IT, IT WAS BASED ON THE OPINION OF THE CHARTERED ACCOUNTANT. LEARNED COUNSE L FOR THE REVENUE, HOWEVER, SUBMITTED THAT A BARE READING OF SECTION 3 5D WOULD REVEAL EVEN TO A LAYMAN THAT THERE WAS NO SCOPE FOR GETTING BEN EFIT OF THOSE PROVISIONS IN RESPECT OF EXPENSES INCURRED IN CONNE CTION WITH THE PUBLIC ISSUE OF SHARES SUCH AS UNDERWRITING COMMISSION, BR OKERAGE AND OTHER CHARGES ETC., INASMUCH AS CERTAIN EXPENSES ARE ALLO WABLE ONLY WHEN THEY ARE INCURRED WITH THE EXPANSION OF ASSESSEES INDUS TRIAL UNDERTAKINGS OR IN ITA NOS.4579 & 4580 /DEL/2010 6 CONNECTION WITH HIS SETTING UP OF A NEW INDUSTRIAL UNDERTAKING OR INDUSTRIAL UNIT WHEREAS THE ASSESSEE IS A FINANCE C OMPANY. 15. WE ARE IN AGREEMENT WITH THE AFORESAID SUBMISSION OF LEARNED COUNSEL FOR THE REVENUE. WE FAIL TO UNDERSTAND AS TO HOW TH E CHARTERED ACCOUNTANTS WHO ARE SUPPOSED TO BE EXPERT IN TAX LA WS, COULD GIVE SUCH AN OPINION HAVING REGARD TO THE PLAIN LANGUAGE OF S ECTION 35D OF THE ACT. IT WOULD BE IMPORTANT TO NOTE THAT ASSESSEE HAS NOW HERE PLEADED THAT RETURN WAS FILED CLAIMING BENEFIT OF SECTION 35D OF THE ACT ON THE BASIS OF THE SAID OPINION. WHAT WAS STATED WAS THAT IN THE P ROSPECTUS IT WAS MENTIONED THAT AS PER THE OPINION GIVEN BY THE CHAR TERED ACCOUNTANTS, THE COMPANY WOULD BE ENTITLED FOR RELIEF UNDER SECT ION 35D OF THE ACT. THEREFORE, IT IS NOT THE CASE OF THE ASSESSEE THAT WHILE FILING THE RETURN IT GOT ASSISTANCE FROM THE CHARTERED ACCOUNTANTS WHO O PINED THAT THE AFORESAID EXPENSES QUALIFY FOR AMORTIZATION OVER A PERIOD OF 10 YEARS UNDER SECTION 35D OF THE ACT. THAT APART, WHEN WE F IND THAT IT IS NOT A CASE WHERE TWO OPINIONS ABOUT THE APPLICABILITY OF SECTION 35D WERE POSSIBLE. THEREFORE, IT CANNOT BE A CASE OF A BONA FIDE ERROR ON THE PART OF THE ASSESSEE. AS HAS BEEN POINTED OUT ABOVE, THE RE LIEF AVAILABLE UNDER SECTION 35D OF THE ACT TO A FINANCE COMPANY IS EX F ACIE INADMISSIBLE AS THAT IS CONFINED ONLY TO THE EXISTING INDUSTRIAL UN DERTAKING FOR THEIR EXTENSION OR FOR SETTING UP A NEW INDUSTRIAL UNIT. IT WAS, THUS, NOT A WRONG CLAIM PREFERRED BY THE ASSESSEE, BUT IS A CLEAR CA SE OF FALSE CLAIM. IN CIT V. VIDYAGAURI NATVERLAL [1999] 238 ITR 91, GUJARAT HIGH COURT MADE A DISTINCTION BETWEEN WRONG CLAIM AS OPPOSED TO FALSE CLAIM AND HELD THAT IF THE CLAIM IS FOUND TO BE FALSE, THE SAME WOULD A TTRACT PENALTY. WE MAY ALSO TAKE NOTE OF THE FOLLOWING OBSERVATIONS OF THE SUPREME COURT IN THE CASE OF UNION OF INDIA V. DHARAMENDRA TEXTILE PROCE SSORS [2008] 306 ITR 277 1 . IN SUCH A CASE IT IS DIFFICULT TO ACCEPT THE PLEA THAT ERROR WAS BONA FIDE. II) KUTTOOKARAN MACHINE TOOLS V ACIT(2009) 313 IT R 413(KER) THE QUESTION RAISED IN THE APPEAL IS WHETHER T HE TRIBUNAL IS JUSTIFIED IN CONFIRMING THE PENALTY LEVIED ON THE A SSESSEE UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT FOR THE ASSESSMENT YEAR 1989-90. ON GOING THROUGH THE TRIBUNAL'S ORDER AND AFTER HEARIN G COUNSEL, WE FIND THAT THE ASSESSEE MADE BOGUS CLAIMS OF INVESTMENT A LLOWANCE AND DEPRECIATION IN RESPECT OF MACHINERY WHICH WERE NOT PURCHASED, INSTALLED OR COMMISSIONED DURING THE PREVIOUS YEAR. THE ASSESSEE HAS NO CASE THAT IT HAD IN FACT PURCHASED AND INSTALLED THE MACHINERY IN RESPECT OF WHICH BENEFITS WERE CLAIMED UNDER THE ST ATUTE. ON THE OTHER HAND, THE ASSESSEE'S CASE IS THAT THIS IS A MISTAKE COMMITTED BY THE AUDITOR AND SO MUCH SO THE ASSESSEE IS NOT LIABLE T O BE SUBJECTED TO PENALTY. IN SUPPORT OF HIS CONTENTION, COUNSEL ALSO RELIED ON THE DECISION OF THE SUPREME COURT IN T. ASHOK PAI V. CI T [2007] 292 ITR 11 . WE DO NOT FIND ANY MERIT IN THE CASE BECAUSE BENE FITS ARE CLAIMED ITA NOS.4579 & 4580 /DEL/2010 7 IN THE RETURN. THOUGH PREPARED BY THE AUDITOR FOR1T HE ASSESSEE, IT WAS FOR THE ASSESSEE TO ENSURE THAT WRONG CLAIMS ARE NO T MADE BY THE PRACTITIONER OR AUDITOR. WE, THEREFORE, REJECT THE ASSESSEE'S CASE OF IMMUNITY FROM PENALTY. SINCE THE PENALTY LEVIED IS MINIMUM LEVIABLE UNDER SECTION 271(1)(C) OF THE ACT THERE IS NO SCOP E FOR REDUCTION IN QUANTUM OF PENALTY ALSO. THE APPEAL, THEREFORE, FAI LS AND IS DISMISSED. III) UOI V DHARMENDRA TEXTILE PROCESSORS(2008) 306 IT 277(SC) THE EXPLANATIONS APPENDED TO SECTION 271(1)(C) OF THE INCOME-TAX ACT ENTIRELY INDICATE THE ELEMENT OF STRICT LIABILI TY ON THE ASSESSEE FOR CONCEALMENT OR FOR GIVING INACCURATE PARTICULARS WH ILE FILING THE RETURN. WILFUL CONCEALMENT IS NOT AN ESSENTIAL ING REDIENT FOR ATTRACTING CIVIL LIABILITY AS IS THE CASE IN THE MA TTER OF PROSECUTION UNDER SECTION 276C OF THE INCOME-TAX ACT. 12. THE PENALTY U/S 271(1)(C) IMPOSED IS THE MINIMU M IMPOSABLE IN THIS CASE. CONSIDERING THE FACTS, THE PENALTY U/S 2 71(1) IS JUSTIFIED AND IS UPHELD 5.1 SIMILARLY, IN THE CASE OF HCIL KALINDEE ARSSPL (JV), THE LD. CIT(A) UPHELD THE PENALTY OF ` ` 23,02,665/-. 6. THESE ASSESSEES ARE NOW IN APPEAL BEFORE US AG AINST THE AFORESAID FINDINGS OF LEARNED CIT(A). AT THE OUTSET, THE LD. AR ON BE HALF OF THE ASSESSEE WHILE REFERRING TO DECISION DATED 13 TH SEPTEMBER,2010 OF THE HONBLE JURISDICTIONAL HIGH COURT IN CIT VS. DHARAM PAL PREM CHAND LTD. IN ITA NO.912/2010 CONTENDED THAT LEVY OF PENALTY IS UNJUSTIFIED, THER E BEING NO CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS THEREOF. THE LD. AR POINTED OUT THAT AMENDMENT TO PROVISIONS OF SECTION 80IA OF THE ACT VIDE FINANCE ACT ,2007 W.E.F DATED 01.04.2000 WAS MADE JUST BEFORE THE DATE OF F ILING OF THE RETURN AND ESCAPED THE ATTENTION OF THE ASSESSEES AND THE AUDI TORS. HE ADDED THAT DEDUCTION HAVING BEEN CLAIMED ON THE STRENGTH OF PR ESCRIBED REPORT OF THE CA IN TERMS OF PROVISIONS OF SECTION 80IA(7) OF THE ACT, PENALTY IMPOSED MAY BE CANCELLED. ON THE OTHER HAND, THE LD. DR SUPPORTED THE FINDINGS OF THE LD. CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUG H THE FACTS OF THE CASE AS ALSO THE DECISION CITED BY THE LD. AR. AS IS AP PARENT FROM THE FACTS OF THE AFORESAID CASE, THE ASSESSEE CLAIMED DEDUCTION U/S 80IA OF THE ACT IN THEIR RETURN ITA NOS.4579 & 4580 /DEL/2010 8 FILED ON 01.11.2007 EVEN WHEN THE EXPLANATION BELOW SECTION 80IA(13) OF THE ACT WAS INSERTED BY THE FINANCE ACT ,2007 W.E.F. 01.04. 2000 WHILE THE FINANCE BILL RECEIVED THE ASSENT OF THE PRESIDENT ON 11 TH MAY, 2007. INDISPUTABLY, THE DEDUCTION U/S 80IA WAS CLAIMED ON THE BASIS OF REPO RT OF THE CA IN FORM NO. 10CCB. THE LD. CIT(A) IN THE IMPUGNED ORD ER CONCLUDED THAT CLAIM BEING NOT BONAFIDE AFTER THE INSERTION OF EXPLANATION BELOW SECTION 80IA(13) OF THE ACT, LEVY OF PENALTY WAS JUSTIFIED. ON THE OTHER HAND, THE LD. AR CONTENDED THAT THE SAID EXPLANATION ESCAPED THE ATTENTION OF NOT ONLY THE ASSESSEE BUT EVEN THE AUDITORS, SUBMITTING REPORT IN FORM NO. 10CCB. IMME DIATELY WHEN THE AO REFERRED TO THE SAID EXPLANATION, THE ASSESSEE A CCEPTED THE VIEW OF THE AO AND PAID TAX ACCORDINGLY. WE FIND TH AT IT IS NOT A CASE WHERE THE ASSESSEE HAS NOT DISCLOSED FULL DETAILS A T THE TIME OF ASSESSMENT. IN TERMS OF PROVISIONS OF SEC. 80IA(7) OF THE ACT, THE DEDUCTION UNDER THE SAID SECTION IS NOT ADMISSIBL E UNLESS THE ASSESSEE FURNISHES IN THE PRESCRIBED FORM, ALONG WI TH THE RETURN OF INCOME, THE REPORT OF AN ACCOUNTANT, AS DEFINED IN THE EXPLANATION BELOW SUB-SECTION (2) OF SECTION 288, CERTIFYING TH AT THE DEDUCTION HAS BEEN CORRECTLY CLAIMED IN ACCORDANCE WITH THE P ROVISIONS OF THE SAID SECTION. THE ASSESSEE, IN THE INSTANT CASE, ME RELY MADE A CLAIM FOR THE DEDUCTION IN TERMS OF THE SAID CERTIF ICATE. IF IN THE PROCESS, THE EXPLANATION BELOW SECTION 80IA(13) E SCAPED THE ATTENTION OF THE CHARTERED ACCOUNTANT, THE ASSESS EE COULD NOT BE FAULTED.. NOT EVEN A WHISPER HAS BEEN MADE IN THE P ENALTY ORDER AS TO WHICH SPECIFIC PARTICULARS WERE FURNISHED INACCU RATE OR WERE CONCEALED. IN THE CASE OF ESCORTS FINANCE LTD.(SUPR A), RELIED UPON BY THE LD. CIT(A), THE LEVY OF PENALTY WAS UPHELD S INCE CLAIM FOR DEDUCTION U/S 35D OF THE ACT WAS FOUND TO BE EXFACI E BOGUS IN CASE OF A FINANCE COMPANY AND THE ASSESSEE NOWHERE PLE ADED THAT RETURN WAS FILED CLAIMING BENEFIT OF SECTION 35D OF THE ACT ON THE BASIS OF THE OPINION OF A CHARTERED ACCOUNTANT. LIKEWISE IN KUTTOOKARAM MACH IME TOOLS(SUPRA) ,BOGUS ITA NOS.4579 & 4580 /DEL/2010 9 CLAIM FOR INVESTMENT ALLOWANCE AND DEPRECIATION WER E MADE IN RESPECT OF MACHINERY WHICH WAS NOT EVEN PURCHASED. SUCH ARE NO T THE FACTS IN THE CASE BEFORE US. IN THE INSTANT CASE , THE AO HAS NOWHER E EVEN ALLUDED IN THE ASSESSMENT ORDER THAT THE CLAIM FOR DEDUCTION U/S 8 0IA WAS EXFACIE BOGUS OR NOT MADE ON THE BASIS OF A CERTIFICATE OF A CHARTERED A CCOUNTANT. THUS, RELIANCE BY THE LD. CIT(A) ON THE THESE TWO DECISIONS IS TOTALL Y MISPLACED. 7.1 MOREOVER, THE EXPRESSION 'HAS CONCEALED THE PARTICULARS OF INCOME' AND 'HAS FURNISHED INACCURATE PARTICULARS O F INCOME' HAVE NOT BEEN DEFINED EITHER IN SECTION 271 OR ELSEWHERE IN THE ACT. HOWEVER, NOTWITHSTANDING THE DIFFERENCE IN THE TWO CIRCUMSTANCES, IT IS NOW WELL ESTABLISHED THAT THEY LEAD TO THE SAME EFFECT NAMELY, KEEPING OFF A CERTAIN PORTION OF THE INCOME FROM TH E RETURN. ACCORDING TO LAW LEXICON, THE WORD 'CONCEAL' MEANS: 'TO HIDE OR KEEP SECRET. THE WORD 'CONCEAL' IS CO N+CELARE WHICH IMPLIES TO HIDE. IT MEANS TO HIDE OR WITHDRAW FROM OBSERVATION; TO COVER OR KEEP FROM SIGHT; TO PREVEN T THE DISCOVERY OF ; TO WITHHOLD KNOWLEDGE OF. THE OFFENC E OF CONCEALMENT IS, THUS, A DIRECT ATTEMPT TO HIDE AN I TEM OF INCOME OR A PORTION THEREOF FROM THE KNOWLEDGE OF T HE INCOME- TAX AUTHORITIES.' IN WEBSTER'S DICTIONARY, 'INACCURATE' HAS BEEN DEFI NED AS : 'NOT ACCURATE, NOT EXACT OR CORRECT; NOT ACCORDING TO TRUTH; ERRONEOUS ; AS AN INACCURATE STATEMENT, COPY OR TRA NSCRIPT.'. 7.2. THE PENALTY U/S 271(1)(C) OF THE ACT IS LE VIABLE IF THE AO IS SATISFIED IN THE COURSE OF ANY PROCEEDINGS UNDER TH IS ACT THAT ANY PERSON HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. IT IS WELL S ETTLED THAT ASSESSMENT PROCEEDINGS AND PENALTY PROCEEDINGS ARE SEPARATE AND DISTINCT AND AS HELD BY HON'BLE SUPREME COURT IN TH E CASE OF ANANTHRAMAN VEERASINGHAIAH & CO. VS. CIT, 123 ITR 4 57, THE FINDINGS IN THE ASSESSMENT PROCEEDINGS CANNOT BE RE GARDED AS ITA NOS.4579 & 4580 /DEL/2010 10 CONCLUSIVE FOR THE PURPOSES OF THE PENALTY PROCEEDI NGS. IT IS ALSO WELL SETTLED THAT THE CRITERION AND YARDSTICKS FOR THE PURPOSE OF IMPOSING PENALTY U/S 271(1)(C) OF THE ACT ARE DIFF ERENT THAN THOSE APPLIED FOR MAKING OR CONFIRMING THE ADDITIONS. IT IS, THEREFORE, NECESSARY TO REAPPRECIATE AND RECONSIDER THE MATTER SO AS TO FIND OUT AS TO WHETHER THE ADDITION OR DISALLOWANCE MADE IN THE QUANTUM PROCEEDINGS ACTUALLY REPRESENTS THE CONCEALMENT ON THE PART OF THE ASSESSEE AS ENVISAGED IN SEC. 271(1 )(C) OF THE ACT AND WHETHER IT IS A FIT CASE TO IMPOSE THE PENALTY BY INVOKING THE SA ID PROVISIONS. THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT STIPULA TE THAT IF THE ASSESSING OFFICER OR THE CIT(APPEALS) OR THE COMMIS SIONER, IN THE COURSE OF PROCEEDINGS UNDER THIS ACT, IS SATISFIED THAT ANY PERSON HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURN ISHED INACCURATE PARTICULARS THEREOF , HE MAY DIRECT THAT SUCH PERS ON SHALL PAY BY WAY OF PENALTY A SUM WHICH SHALL NOT BE LESS THAN BUT WHICH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED BY A REASON OF THE CONCEALMENT OF PARTICULARS OF HIS INC OME. EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT MENTIONS THAT WHE RE IN RESPECT OF ANY FACTS MATERIAL TO THE COMPUTATION OF THE TOTAL INCOME OF ANY PERSON UNDER THE ACT, SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OFFERS AN EXPLANATION WHICH IS FOUND BY THE AO OR T HE CIT (APPEALS) OR THE COMMISSIONER TO BE FALSE, OR SUCH PERSON OFF ERS AN EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE A ND FAILS TO PROVE THAT SUCH EXPLANATION IS BONA FIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOT AL INCOME HAVE BEEN DISCLOSED BY HIM, THEN THE AMOUNT ADDED OR DIS ALLOWED IN COMPUTING THE TOTAL INCOME OF SUCH PERSON AS A RESU LT THEREOF SHALL FOR THE PURPOSE OF CLAUSE (C) OF SECTION 271(1), B E DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULAR S HAVE BEEN CONCEALED. IN OTHER WORDS, THE NECESSARY INGREDIEN TS FOR ATTRACTING EXPLANATION 1 TO SECTION 271(1)(C) ARE THAT ITA NOS.4579 & 4580 /DEL/2010 11 (I) THE PERSON FAILS TO OFFER THE EXPLANATION, OR (II) HE OFFERS THE EXPLANATION WHICH IS FOUND BY TH E AO OR THE CIT (APPEALS) OR THE COMMISSIONER TO BE FALSE, OR (III) THE PERSON OFFERS EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATI ON IS BONA FIDE AND THAT ALL THE FACTS RELATING TO THE SAME H AVE BEEN DISCLOSED BY HIM. 7.3 IF THE CASE OF ANY ASSESSEE FALLS IN ANY OF THESE THREE CATEGORIES, THEN THE DEEMING PROVISION PROVIDED IN EXPLANATION 1 TO SECTION 271(1)(C) COME INTO PLAY, AND THE AMOUNT AD DED OR DISALLOWED IN COMPUTING THE TOTAL INCOME SHALL BE C ONSIDERED AS THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CO NCEALED, FOR THE PURPOSES OF CLAUSE (C) OF SECTION 271(1), AND THE P ENALTY FOLLOWS. ON THE OTHER HAND, IF THE ASSESSEE IS ABLE TO OFFER A N EXPLANATION, WHICH IS NOT FOUND BY THE AUTHORITIES TO BE FALSE, AND ASSESSEE HAS BEEN ABLE TO PROVE THAT SUCH EXPLANATION IS BONA FI DE AND THAT ALL THE FACTS RELATING TO THE SAME HAVE BEEN DISCLOSED BY HIM, THE ASSESSEE SHALL BE OUT OF THE CLUTCHES OF EXPLANATIO N 1 TO SECTION 271(1)(C) OF THE ACT, AND IN THAT CASE, THE PENALTY SHALL NOT BE IMPOSED. HONBLE SUPREME COURT IN THE CASE OF DILIP N. SHROFF V. JT. CIT [2007] 210 CTR (SC) 228 : [2007] 291 ITR 519 (S C) WHILE CONSIDERING THE SCOPE OF THE PROVISIONS U/S 271(1 )( C) OF THE ACT OBSERVED IN THE FOLLOWING TERMS: THE LEGAL HISTORY OF SECTION 271(1)(C) OF THE ACT TRACED FROM THE 1922 ACT PRIMA FACIE SHOWS THAT THE EXPLAN ATIONS WERE APPLICABLE TO BOTH THE PARTS. HOWEVER, EACH CA SE MUST BE CONSIDERED ON ITS OWN FACTS. THE ROLE OF THE EXPLAN ATION HAVING REGARD TO THE PRINCIPLE OF STATUTORY INTERPR ETATION MUST BE BORNE IN MIND BEFORE INTERPRETING THE AFOREMENTI ONED PROVISIONS. CLAUSE (C) OF SUB-SECTION (1) OF SECTIO N 271 CATEGORICALLY STATES THAT THE PENALTY WOULD BE LEVI ABLE IF THE ASSESSEE CONCEALS THE PARTICULARS OF HIS INCOME OR FURNISHES INACCURATE PARTICULARS THEREOF. BY REASON OF SUCH C ONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS ALONE, THE ASSESSEE DOES NOT IPSO FACTO BECOME LIABLE FOR PENALTY. IMPO SITION OF ITA NOS.4579 & 4580 /DEL/2010 12 PENALTY IS NOT AUTOMATIC. LEVY OF PENALTY IS NOT ON LY DISCRETIONARY IN NATURE BUT SUCH DISCRETION IS REQU IRED TO BE EXERCISED ON THE PART OF THE ASSESSING OFFICER KEEP ING THE RELEVANT FACTORS IN MIND. SOME OF THOSE FACTORS APA RT FROM BEING INHERENT IN THE NATURE OF PENALTY PROCEEDINGS AS HAS BEEN NOTICED IN SOME OF THE DECISIONS OF THIS COURT , INHERES ON THE FACE OF THE STATUTORY PROVISIONS. PENALTY PROCE EDINGS ARE NOT TO BE INITIATED, AS HAS BEEN NOTICED BY THE WAN CHOO COMMITTEE, ONLY TO HARASS THE ASSESSEE. THE APPROAC H OF THE ASSESSING OFFICER IN THIS BEHALF MUST BE FAIR AND O BJECTIVE. THE TERM 'INACCURATE PARTICULARS' IS NOT DEFINED. F URNISHING OF AN ASSESSMENT OF VALUE OF THE PROPERTY MAY NOT BY I TSELF BE FURNISHING OF INACCURATE PARTICULARS. EVEN IF THE E XPLANATIONS ARE TAKEN RECOURSE TO, A FINDING HAS TO BE ARRIVED AT HAVING REGARD TO CLAUSE (A) OF EXPLANATION 1 THAT THE ASSE SSING OFFICER IS REQUIRED TO ARRIVE AT A FINDING THAT THE EXPLANATION OFFERED BY AN ASSESSEE, IN THE EVENT HE OFFERS ONE, WAS FALSE. HE MUST BE FOUND TO HAVE FAILED TO PROVE THAT SUCH EXPLANATION IS NOT ONLY NOT BONA FIDE BUT ALL THE FACTS RELATIN G TO THE SAME AND MATERIAL TO THE INCOME WERE NOT DISCLOSED BY HI M. THUS, APART FROM HIS EXPLANATION BEING NOT BONA FIDE, IT SHOULD HAVE BEEN FOUND AS OF FACT THAT HE HAS NOT DISCLOSED ALL THE FACTS WHICH WAS MATERIAL TO THE COMPUTATION OF HIS INCOME . 7.4 IN THE LIGHT OF AFORESAID OBSERVATIONS O F THE HONBLE APEX COURT , WHAT IS TO BE SEEN IN THE INSTANT CASE, IS WHETHER THE CLAIM FOR DEDUCTION U/S 80IA OF THE ACT, ON THE BASIS OF CERTIFICATE OF THE ACCOUNTANT, MADE BY THE ASSESSEE WAS BONA-FIDE AND WHETHER ALL THE MATERIAL FACTS RELEVANT THERETO HAVE BEEN FURNI SHED AND ONCE IT IS SO ESTABLISHED, THE ASSESSEE CANNOT BE HELD LIAB LE FOR CONCEALMENT PENALTY U/S 271(L)(C) OF THE ACT. THE A SSESSING OFFICER HAS NOT BEEN ABLE TO ESTABLISH THAT THE CLAIM OF TH E ASSESSEE FOR DEDUCTION UNDER SECTION 80IA OF THE ACT WAS NOT B ONA FIDE. A MERE REJECTION OF THE CLAIM OF THE ASSESSEE BY RELYING O N DIFFERENT INTERPRETATIONS DOES NOT AMOUNT TO CONCEALMENT OF T HE PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS THEREOF BY THE ASSESSEE. HON'BLE APEX COURT IN CIT V. RELIANCE PETROPRODUCTS (P.) LTD. [2010] 322 ITR 158/ 189 TAXMAN 322, AFTER CONSIDERING VARIOUS DECI SIONS INCLUDING DILIP N. ITA NOS.4579 & 4580 /DEL/2010 13 SHROFF V. JT. CIT [2007] 291 ITR 519/ 161 TAXMAN 21 8 (SC) AND UNION OF INDIA V. DHARMENDRA TEXTILE PROCESSORS [2008] 306 ITR 277 / 174 TAXMAN 571 (SC) CONCLUDED THAT A MERE MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PA RTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNO T AMOUNT TO FURNISHING INACCURATE PARTICULARS. FOLLOWING THIS DECISION, HO NBLE JURISDICTIONAL HIGH COURT IN M/S DHARMPAL PREMCHAND(SUPRA) UPHELD THE CANCELLATION OF PENALTY LEVIED IN RELATION TO INCO RRECT CLAIM OF DEDUCTION U/S 80IA & 80IB OF THE ACT. MERE DISALLOW ANCE OF A CLAIM WILL NOT AMOUNT TO FILING OF INACCURATE PARTICULARS OF INCOM E. IT CAN AT BEST BE A WRONG CLAIM NOT A FALSE CLAIM. IN SUCH CIRCUMSTANCES, HONBLE DELHI HIGH COURT HELD IN THE CASE OF COMMISSIONER OF INCOME-TAX.VS BACARD I MARTINI INDIA LIMITED.,288 ITR 585(DEL) THAT NO PENALTY WAS LEVIABLE. IN THE C ASE UNDER CONSIDERATION, THERE IS NOTHING TO SUGGEST THAT THE ASSESSEE FURN ISHED ANY INACCURATE PARTICULARS OR CONCEALED THE PARTICULARS . ADMITTEDLY, THE CLAIM FOR DEDUCTION U/S 80IA WAS DULY SUPPORTED BY THE CERTIFICATE OF THE CHARTERED ACCOUNTANT IN THE PRESCRIBED FORM. IN THESE CIRCUMSTANCES, NO FAULT CAN BE FOUND WITH THE CLAIM OF THE ASSESSEE THAT IT HAD CLAIMED THE DEDUCTION IN A BONA FIDE MA NNER. IN SOMEWHAT SIMILAR CIRCUMSTANCES. HONBLE PUNJAB AND HARYANA HIGH COURT CANCELLED THE PENALTY LEVIED IN RESPECT OF DI SALLOWANCE OF DEDUCTION U/S.80I IN THE CASE OF CIT VS. SD RICE MI LLS, 275 ITR 206 (P&H). SIMILAR VIEW WAS TAKEN IN ACIT VS. ARISUDAN A SPINNING MILLS LTD.,19 DTR 1(CHD.) AND MODEL FOOTWEAR P LTD. VS. I TO,124 ITD 353(DEL.). MOREOVER, MERE FACT THAT THE REPORT PRE PARED BY THE CA IN FORM 10CCB WAS NOT IN ACCORDANCE WITH THE PROVI SIONS OF SECTION 80IA(7) OF THE ACT, WAS NOT ENOUGH TO HOLD THAT THE MISTAKE WAS NOT BONA FIDE. THIS VIEW IS SUPPORTED BY THE DECISION IN THE CASE OF CIT VS. DEEP TOOLS PVT. LTD., 274 ITR 603 (P&H),WHE RE IN ALSO LEVY OF PENALTY WAS HELD TO BE UNJUSTIFIED. IN CIT VS. C APLIN POINT LABORATORIES LTD., 293 ITR 524(MAD.),HONBLE HIGH COURT WHILE ITA NOS.4579 & 4580 /DEL/2010 14 ADJUDICATING THE LEVY OF PENALTY IN RELATION TO IN CORRECT CLAIM FOR DEDUCTION U/S 80HHC & 80I OF THE ACT HELD IN THE L IGHT OF AFORESAID DECISION OF THE HONBLE APEX COURT IN DILIP N. SHROFF(SUPRA) THAT A MERE REJECTION OF THE CLAIM OF THE ASSESSEE BY RELY ING ON DIFFERENT INTERPRETATIONS DOES NOT AMOUNT TO CONCEALMENT OF T HE PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCO ME BY THE ASSESSEE. 7.5. IN VIEW OF THE FOREGOING, WE ARE OF THE OPI NION THAT MERE ERRONEOUS CLAIM IN THE ABSENCE OF ANY CONCEALMENT O R FURNISHING OF INACCURATE PARTICULARS, IS NO GROUND FOR LEVYING PE NALTY, ESPECIALLY WHEN THERE IS NOTHING ON RECORD TO SHOW THAT ANY MA TERIAL PARTICULARS WERE CONCEALED OR FURNISHED INACCURATE . IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT LEVY O F PENALTY IS NOT JUSTIFIED. CONSEQUENTLY, WE HAVE NO HESITATION IN VACATING THE FINDINGS OF THE LD. CIT(A) IN RESPECT OF LEVY PENA LTY IN RELATION TO CLAIM FOR DEDUCTION U/S 80IA OF THE ACT. ACCORDINGL Y, PENALTY IMPOSED BY THE AO IS CANCELLED IN THE CASE OF THESE TWO ASSESSEES. CONSEQUENTLY, GROUND RAISED IN THESE TWO APPEALS I S ALLOWED. 8. IN THE RESULT, BOTH THESE APPEALS ARE ALLOWED. SD/- SD/- (C.L. SETHI) (A.N. PAHUJA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) NS COPY OF THE ORDER FORWARDED TO :- 1. AC.I.T., CENTRAL CIRCLE-38 (1), NEW DELHI. 2. M/S HCIL ARSSPL TRIVENI (JV) & M/S HCIL KALINDEE ARSSPL (JV), 113-A, KAMLA NAGAR, DELHI-7 3. CIT(A)-XXVIII, NEW DELHI. 4. CIT CONCERNED. 5. DR, ITAT,C BENCH, NEW DELHI ORDER PRONOUNCED IN OPEN COURT ITA NOS.4579 & 4580 /DEL/2010 15 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, DELHI