The ACIT, 5(1), Indore V. M/s Alpha Laborities Pvt. Ltd., Indore

ITA 487/IND/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1516 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 03-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Non-deduction of tax; Wrong claim; Revised return
• Section: 43B; 14A; 80IB

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.487/IND/2012 A.Y. 2008-09 ACIT-5(1), INDORE :: APPELLANT VS M/S. ALPA LABORATORIES PRIVATE LIMITED, RAU, INDORE PAN AACCA 8437 C :: RESPONDENT AND, CROSS-OBJECTION NO.101/IND/2012 (ARISING OUT OF ITA NO.487/IND/2012) A.Y. 2008-09 M/S. ALPA LABORATORIES PRIVATE LIMITED, RAU, INDORE PAN AACCA 8437 C :: OBJECTOR VS ACIT-5(1), INDORE :: RESPONDENT DEPARTMENT BY SHRI R.A. VERMA, SR.DR ASSESSEE BY SHRI SUDHIR PADLIYA, CA 2 DATE OF HEARING 29 .1.2013 DATE OF PRONOUNCEMENT 3 1 .1 .2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE REVENUE AS WELL AS ASSESSEE ARE AGGRIEVED WITH THE ORDER DATED 19.6.2012 OF THE LEARNED CIT(A)-II, INDORE. T HE REVENUE IS IN APPEAL WHEREAS THE ASSESSEE HAS PREFERRED CROSS-OBJ ECTION. FIRST, WE SHALL TAKE UP APPEAL OF THE REVENUE WHEREIN THE GROUND RAISED IS THAT THE LD. FIRST APPELLATE AUTHORITY ERRED IN DELETING THE PENALTY OF RS.21 LACS IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE I.T. ACT. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I R.A. VERMA, LD. SR. DR AND SHRI SUDHIR PADLIYA, LEARNED COUNSEL FOR THE ASSESSEE. THE CRUX OF ARGUMENTS ON BEHALF OF THE R EVENUE IS IDENTICAL TO THE GROUND RAISED BY SUPPORTING THE PE NALTY ORDER. IT WAS ALSO PLEADED THAT THE CASES OF CIT VS. DHARAMPA L PRAMCHAND LTD. (329 ITR 572) (DEL) AND CIT VS. RALIANCE PETRO P. LTD. (230 CTR 320), FROM HON'BLE APEX COURT ARE NOT APPLICABLE, B EING, ON DIFFERENT FACTS. IT WAS STRONGLY CONTENDED THAT THE ASSESSEE CONSENTED FOR ADDITION AFTER THE CONCEALMENT/FURNIS HING OF INACCURATE PARTICULARS WERE DETECTED BY THE DEPARTM ENT OTHERWISE IT 3 WOULD HAVE GONE UNNOTICED. IT WAS EMPHATICALLY CONT ENDED THAT INSPITE OF THE FACT THAT AUDITOR PINPOINTED THE MIS TAKES TO THE ASSESSEE, STILL THE ASSESSEE CHOSE NOT TO DECLARE T HE SAME. IT WAS CONTENDED THAT THE ASSESSING OFFICER JUSTIFIABLY MA DE THE ADDITION/DISALLOWANCES. OUR ATTENTION WAS INVITED T O VARIOUS PAGES OF THE PENALTY ORDER/ASSESSMENT ORDER. 2.1 ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT DUE TO WRONG GROUPING OF EXPENSES UN DER THE HEAD RATE AND TAXES, THE MISTAKE OCCURRED, DUE TO OVER SIGHT AND THE ASSESSEE AGREED FOR ADDITION WHEN THE MISTAKE WAS P OINTED OUT BY THE ASSESSING OFFICER FOR INADMISSIBILITY OF THE AM OUNT U/S 40(A) OF THE ACT. IDENTICAL WAS THE SITUATION FOR ENTRY TAX LIABILITY. FOR DECLARATION OF CAPITAL GAIN AND DEDUCTION OF TAX AT SOURCE, IT WAS CONTENDED THAT THE ASSESSEE AGREED FOR ADDITION. TH E CRUX OF THE ARGUMENTS IS THAT IT WAS A CLERICAL MISTAKE AND NO CONCEALMENT AS SUCH. THE LEARNED COUNSEL FOR THE ASSESSEE PLACED R ELIANCE UPON THE DECISION OF CIT VS. DHARAMPAL PREMCHAND (SUPRA) , RELIANCE PETRO PRODUCTS (SUPRA) AND ANOTHER DECISION FROM HO N'BLE APEX 4 COURT IN PRICE WATER HOUSE COOPERS PRIVATE LIMITED VS. CIT (CIVIL APPEAL NO.6924 OF 2012). 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE DECLARED TOTAL INCOME OF RS.6,10,99,218/- IN ITS RETURN ON 29.9.2008. IN COMPLIANCE TO THE NOTICES, THE ASSESS EE ATTENDED ASSESSMENT PROCEEDINGS AND PRODUCED BOOKS OF ACCOUN TS. FROM COMPUTATION OF INCOME, IT WAS FOUND BY THE ASSESSIN G OFFICER THAT FOR INCOME-TAX PROVISION (AY 2006-07), AMOUNT OF RS .24,25,973/- WAS NOT ADDED BACK INSPITE OF THE FACT THAT IN ITEM NO.17(F) OF THE AUDIT REPORT, THE SAID AMOUNT HAS BEEN SHOWN AS INA DMISSIBLE U/S 40(A) OF THE ACT. VIDE ORDER SHEET ENTRY DATED 18.8 .2010, THE ASSESSEE WAS ASKED TO FURNISH CERTAIN INFORMATION. THE ASSESSEE VIDE WRITTEN REPLY DATED 9.9.2010 TOOK THE FOLLOWIN G PLEA: YOUR HONOUR HAS REQUIRED THE ASSESSEE TO EXPLAIN W HY THE AMOUNT OF INCOME-TAX FOR THE AY 2006-07 OF RS.24,25 ,973/- HAS NOT BEEN ADDED BACK TO THE INCOME OF THE ASSESS EE WHILE COMPUTING THE INCOME CHARGEABLE TO TAX. IN TH IS REGARD IT IS SUBMITTED THAT DUE TO WRONG GROUPING O F THE SAID EXPENSES UNDER THE HEAD RATES & TAXES, INSTEAD OF CONSIDERING THE SAME IN THE MAIN PROFIT & LOSS ACCO UNT AS AN INCOME TAX, WHILE COMPUTING THE INCOME IT REMAIN ED TO BE ADDED TO THE INCOME OF THE ASSESSEE DUE TO OVERS IGHT AS THE SAME WAS NOT APPEARING IN THE MAIN PROFIT & LOS S ACCOUNT. NOW THE ASSESSEE HAS NO OBJECTION IN ADDIN G BACK THE SAME TO THE INCOME OF THE ASSESSEE. 5 IF THE AFORESAID SUBMISSION OF THE ASSESSEE IS ANAL YSED, WE FIND THAT THE ASSESSEE ADMITTED THAT IT COULD NOT BE ADDED BA CK TO THE INCOME DUE TO WRONG GROUPING OF THE SAID EXPENSES DUE TO O VERSIGHT AND AGREED FOR ADDITION TO THE INCOME OF THE ASSESSEE, MEANING THEREBY, THE ASSESSEE ADMITTED ITS FAULT OF FURNISHING OF IN ACCURATE PARTICULARS AFTER IT WAS DETECTED BY THE DEPARTMENT . IT IS NOT THE CASE THAT THE ASSESSEE AGREED FOR ADMISSION SUO MOT U BEFORE DETECTION BY THE DEPARTMENT. EVEN ON A QUERY FROM T HE BENCH REGARDING THE FACTUAL ASPECT, IT WAS FAIRLY ADMITTE D BY THE ASSESSEE THAT DUE TO OVERSIGHT, IT HAPPENED AND MERELY CONTE NDED THAT ASSESSEE HAD NO OBJECTION FOR THE ADDITION. 3.1 THE ASSESSEE WAS ALSO ASKED FOR THE PROOF OF PA YMENT OF ENTRY TAX AMOUNTING TO RS.31,94,466/- SHOWN IN ITEM NO. 2 1A(B) OF THE AUDIT REPORT. THE ASSESSEE VIDE WRITTEN REPLY ON 15 .10.2010 SUBMITTED AS UNDER: YOUR HONOUR HAS REQUIRED THE ASSESSEE TO SUBMIT THE PROOF OF THE PAYMENT MADE OF RS.31,94,466/-. TOWARDS ENTR Y TAX FOR THE FY 2007-08. IN THIS REGARD IT IS SUBMITTED THAT THERE IS SOME DISPUTE GOING ON WITH THE SALES TAX DEPARTM ENT REGARDING THE LIABILITY OF THE PAYMENT OF SUCH TAX. SINCE THE ASSESSEE IS FOLLOWING THE MERCANTILE SYSTEM OF ACCO UNTING THEREFORE, PROVISION FOR THE SAME HAS BEEN MADE IN THE BOOKS OF ACCOUNTS AND SHOWN AS PAYABLE FOR THE SAID AMOUNT. SINCE THE SAME IS OUTSTANDING DUE TO DISPUT E THEREFORE THE SAME IS DISALLOWABLE WHILE COMPUTING THE 6 TAXABLE INCOME OF THE ASSESSEE AS PER THE PROVISION OF SECTION 43B OF ACT, IT IS THEREFORE, SUBMITTED THAT THE SAME MAY BE DISALLOWED U/S 43B OF THE ACT AND SAME MAY B E ALLOWED IN THE YEAR OF PAYMENT AS PER THE PROVISION OF SECTION 43B OF THE ACT. IF THE AFORESAID REPLY OF THE ASSESSEE IS ANALYSED, IT IS UNCONTROVERTED FACT THAT EVEN THE AUDITOR OF THE AS SESSEE POINTED OUT SUCH LIABILITY OF PAYMENT OF THE TAX, STILL THE ASSESSEE DID NOT HEED TO THE ADVICE OF THE AUDITOR AND AFTER IT WAS DETECTED BY THE DEPARTMENT AGREED THAT THE AMOUNT OF RS.31,94,466/- MAY BE DISALLOWED U/S 43B OF THE ACT WHICH RESULTED INTO A DDITION. 3.2 REGARDING PAYMENT OF BONUS AMOUNTING TO RS.4,85 ,000/-, THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE BONUS A MOUNT, DEBITED TO P & L ACCOUNT, AND PAID AFTER FILING OF RETURN, SHOULD NOT BE ADDED TO THE TOTAL INCOME. THE ASSESSEE, VIDE WRITT EN REPLY DATED 9.9.2010, SUBMITTED AS UNDER: YOUR HONOUR HAS REQUIRED THE ASSESSEE TO EXPLAIN TH E VARIATION OF BONUS AMOUNT AS CHARGED IN THE PROFIT & LOSS ACCOUNT AND AS SHOWN IN THE LIABILITIES AS UNPAID B ONUS. IN THIS REGARD IT IS SUBMITTED THAT THE ASSESSEE HAS M ADE THE PROVISION OF BONUS PAID OF RS.485000/- FOR THE YEAR UNDER CONSIDERATION AND CHARGED TO THE PROFIT & LOSS ACCO UNT, AND CREDITED THE SAME AMOUNT TO THE UNPAID BONUS. T HERE WAS AN OPENING BALANCE OF RS.7,54,006/- IN THE UNPA ID BONUS ACCOUNT AND WAS FURTHER CREDITED BY RS.4,85,0 00/- BEING THE AMOUNT CHARGED TO THE PROFIT & LOSS ACCOU NT FOR THE YEAR UNDER CONSIDERATION AND ACTUALLY PAID A SU M OF RS.6,22,048/- THUS THERE REMAINS UNPAID BONUS OF RS.6,31,263/- WHICH HAS SHOWN AS LIABILITY FOR UNPA ID BONUS. THUS THERE IS NO DIFFERENCE BETWEEN THE AMOU NT 7 CHARGED TO PROFIT & LOSS ACCOUNT AND DISCLOSED IN T HE BALANCE SHEET. IN THIS REGARD THE ASSESSEE IS ENCLO SING HEREWITH THE COPY OF UNPAID BONUS ACCOUNT FOR THE Y EAR UNDER CONSIDERATION FOR YOUR KIND PERUSAL AND CONSIDERATION. THE AFORESAID REPLY OF THE ASSESSEE WAS CONSIDERED BY THE ASSESSING OFFICER AND OBSERVED THAT THE ASSESSEE ADMITTED THA T THE PROVISION OF BONUS OF RS.4,85,000/- WAS CHARGED TO P & L ACCO UNT AND CREDITED THE SAME AMOUNT TO THE UNPAID BONUS AND EV EN ON RAISING QUERY BY THE ASSESSING OFFICER, IT WAS ADMITTED BY THE ASSESSING OFFICER THAT EVEN UPTO THE FILING OF THE RETURN, AS PER STATUTORY REQUIREMENT U/S 43B OF THE ACT READ WITH 36(1)(II) OF THE ACT, THIS AMOUNT WAS NOT PAID. THE PAGES 596 TO 614 OF THE DE TAILS OF BONUS PAID TO ITS EMPLOYEES WERE CONSIDERED THAT THE DUE DATE OF FILING WAS 30.9.2008 AND THE DATE OF PAYMENT WAS 24.10.2008 BU T STILL THE IMPUGNED AMOUNT WAS NOT PAID. IT WAS ADDED TO THE T OTAL INCOME. 3.3 SO FAR AS THE ISSUE OF SHORT TERM CAPITAL GAIN IS CONCERNED, THE ASSESSEE WAS ASKED VIDE QUESTIONNAIRE DATED 26.10.2 010 REGARDING BIFURCATION OF INVESTMENT FOR FY TO 2007-08. IT WAS FOUND BY THE ASSESSING OFFICER THAT BESIDES INVESTMENT OF 3 CROR ES IN KOTAK MAHINDRA (DATE OF PURCHASE 5.11.2007), FURTHER INVE STMENT OF RS.3,00,04,394/- HAS BEEN MADE ON 7.11.2007 WHICH W AS NOT 8 FOUND IN THE DETAILS OF INVESTMENT SUBMITTED ON 12. 10.2007. THE ASSESSEE VIDE SUBMISSION DATED 16.11.2007 AGREED FO R SHORT TERM CAPITAL GAIN OF RS.4,394/-. IT WAS ADDED TO THE TOT AL INCOME. 3.4 ON THE ISSUE OF NON-DEDUCTION OF TAX AT SOURCE ON FREIGHT PAYMENT, THE ASSESSEE AGREED THAT NO TAX WAS DEDUCT ED ON THESE PAYMENTS WHICH RESULTED ADDITION OF RS.77,308/-. 3.5 IF THE AFORESAID ADDITIONS ARE EXAMINED CUMULAT IVELY, ONE FACT IS OOZING OUT THAT ONLY AFTER DETECTION OF CONCEALM ENT OF INCOME BY A.O. DURING SCRUTINY ASSESSMENT PROCEEDINGS, THE AS SESSEE AGREED FOR ADDITION AND NOT SUO MOTU. IT IS ALSO PERTINENT TO MENTION HERE THAT EVEN AFTER DETECTION BY THE DEPARTMENT, THE AS SESSEE NEITHER FILED THE REVISED RETURN OF INCOME NOR PREFERRED AN Y APPEAL AGAINST THESE ADDITIONS/DISALLOWANCES. THE ASSESSING OFFICE R IN SUCH A SITUATION CONCLUDED AS UNDER: I HAVE CONSIDERED, THE CONTENTION OF THE ASSESSEE A ND THE SAME IS NOT ACCEPTABLE. THE EXPENSES ARE TO BE DISALLOWED BY TH E ASSESSEE ITSELF WHILE FILING THE RETURN WHICH HAS NOT BEEN DONE BY THE AS SESSEE. THE FACTS OF THE CASE OF THE ASSESSEE ARE ENTIRELY DIFFERENT FROM TH E CASE CITED BY THE ASSESSEE. IN THE CASES CITED THERE WAS DISALLOWANCE MADE BY T HE ASSESSING OFFICER U/S 14A OF THE ACT BY NOT ACCEPTING THE CLAIM OF THE AS SESSEE WHILE IN THE PRESENT CASE, THE DISALLOWANCES WERE AUTOMATIC AND ASSESSEE SHOULD HAVE ITSELF DECLARED IT IN ITS RETURN. THE ASSESSEE HAS SUBMITT ED INACCURATE PARTICULARS BY NOT MENTIONING THE AMOUNT OF DISALLOWANCE IN RESPEC T OF EXPENSES IN THE E- RETURN WHICH ARE REQUIRED TO BE FILED IN PART A-OI (OTHER INFORMATION) WHICH IS INTEGRAL PART OF THE RETURN AND TO BE FILLED BY THE ASSESSEE, ACCOUNTS OF WHICH 9 ARE AUDITED U/S 44AB OF THE ACT. THE ASSESSEE HAD T O MENTION THE AMOUNT OF DISALLOWANCE U/S 40 (A) & 40(A) (IA) IN SUB-COLUMNS OF COLUMN 8A AND DISALLOWANCE U/S 43B IN COLUMN 11 OF PART A-OI OF T HE RETURN. NOT SHOWING ANY AMOUNT WHICH ARE REQUIRED TO BE SHOWN IN THE RE TURN IS TREATED AS SUBMISSION OF INACCURATE PARTICULARS AS BY NOT SHOW ING THE AMOUNT IN THE RESPECTIVE COLUMNS, THE ASSESSEE HAS GIVEN THE IMPRESSION THAT NO SUCH DISALLOWANCE WERE APPLICABLE IN THE CASE OF TH E ASSESSEE, WHICH IS TANTAMOUNT TO THE FURNISHING OF INACCURATE PARTI CULARS. THE REPLY OF THE AR IN RESPECT OF THE SHORT TERM CAPITAL GAIN IS ALSO NOT ACCEPTABLE, AS IT WAS LEGAL DUTY OF THE ASSESSEE TO DECLARE THE INCOME WHICH HAS ACCRUED TO HIM. THE PLEAS OF THE IGNORANC E OF THE FACT CANNOT BE RESORTED AS THE TRANSACTIONS WERE RELATED TO THE ASSESSEE AND IT OUGHT TO HAVE KNOWLEDGE OF THE TRANSACTION M ADE BY IT. AS DISCUSSED ABOVE, IT IS CLEAR THAT THE ASSESSEE H AS NOT SUBMITTED CORRECT PARTICULARS ABOUT ITS INCOME. ASSESSEE IS C ULPRIT OF CONCEALMENT OF ITS INCOME IN THE MEANING U/S 271 (1 ) (C) OF THE I.T, ACT. THE ASSESSING OFFICER IMPOSED PENALTY OF RS. 21,00, 000/- ON THE GROUND THAT THE ASSESSEE FURNISHED INACCURATE PARTI CULARS OF ITS INCOME. 4. ON APPEAL, THE LD. CIT(A) CONCLUDED THAT SINCE T HE ASSESSEE ADMITTED ITS LIABILITY WITHOUT OBJECTION AND AGREED FOR ADDITION, THEREFORE, PENALTY IS DELETED. WHILE COMING TO THIS CONCLUSION, LD. CIT(A) BROADLY CONSIDERED THE DECISION OF CIT VS. D HARAMPAL PREMCHAND LTD. ( SUPRA) FROM HONBLE DELHI HIGH COU RT AND ANOTHER DECISION OF RELIANCE PETRO PRODUCTS (P) LTD (SUPRA) . WE HAVE PERUSED BOTH DECISIONS. IN THE CASE OF DHARAMP AL PREMCHAND (SUPRA), THE ASSESSEE WAS MANUFACTURER OF CHEWING T OBACCO AND KIWAM, CLAIMED DEDUCTION U/S 80IA AND 80IB OF THE A CT. THE ASSESSMENT WAS FRAMED DENYING THE CLAIMED DEDUCTION . ON THE 10 BASIS OF SUCH DISALLOWANCE, PENALTY WAS IMPOSED U/S 271(1) (C) OF THE ACT. ON APPEAL, THE LD. CIT (A) DELETED THE PEN ALTY ON THE GROUND THAT THE ASSESSEE HAS DISCLOSED ALL MATERIAL FACTS PERTAINING TO THE COMPUTATION OF DEDUCTION. ON APPEAL, THE TRI BUNAL AFFIRMED THE ORDER OF THE CIT (A). ON FURTHER APPEAL BY THE DEPARTMENT BEFORE THE HONBLE HIGH COURT, THE STAND OF THE TRIBUNAL W AS AFFIRMED BY PLACING RELIANCE UPON THE DECISION IN RELIANCE PETR O PRODUCTS PVT. LTD. (322 ITR 158) ( SC). WE FIND THAT THE FACTS OF BOTH THESE CASES ARE ENTIRELY DIFFERENT BECAUSE IN BOTH THE CASES, A CLAIM WAS MADE BY THE ASSESSEE WHEREAS IN THE PRESENT APPEAL, INAC CURATE PARTICULARS, LEADING TO CONCEALMENT OF INCOME, WERE FILED BY THE ASSESSEE. IN THE CASE OF RELIANCE PETRO PRODUCTS, T HE HONBLE APEX COURT CLEARLY HELD THAT EVEN IF A WRONG CLAIM IS MA DE, THAT ITSELF DOES NOT TANTAMOUNT TO CONCEALMENT OF INCOME. WE AR E FULLY CONVINCED WITH THESE LANDMARKS DECISIONS. HOWEVER, IN THE PRESENT APPEAL, INSPITE OF THE FACT THAT THE AUDITOR OF THE ASSESSEE ITSELF POINTED OUT ABOUT THE MISTAKE OF THE ASSESSEE, STIL L THE ASSESSEE FURNISHED INACCURATE PARTICULARS IN THE RETURN AND WHEN DETECTED BY THE DEPARTMENT, THE ASSESSEE AGREED FOR ADDITION , THEREFORE, WITH UTMOST RESPECT, IT CAN BE SAID THAT THE FACTS OF TH E PRESENT APPEAL 11 ARE ENTIRELY DIFFERENT FROM THE FACTS OF THE AFORES AID CASES RELIED UPON BY THE CIT (A). THEREFORE, THE CONCLUSION DRAW N BY LD. CIT(A) BY PLACING RELIANCE ON INAPPLICABLE CASES, IS PATEN TLY WRONG. 5. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON AN UNREPORTED DECISION OF PRICE WATER HOUSE COOPERS PVT. LTD FROM HONBLE APEX COURT (CIVIL APPEAL NO. 6924 OF 2004) AND FURNISHED THE COPY OF THE SAME. BEFORE ADVERTING FURTHER, IT IS OUR BOUNDEN DUTY TO ANALYSE THE FACTS OF THE AFORESAID CASE, TH EREFORE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION OF THE O RDER :- 13. AGAINST THE ORDER OF THE TRIBUNAL, THE ASSESS EE APPROACHED THE CALCUTTA HIGH COURT WHICH DISMISSED ITS APPEAL FILED UNDER SECTION 260-A OF T HE ACT BY THE IMPUGNED ORDER. THE ONLY REASON GIVEN BY THE HIGH COURT FOR DISMISSING THE APPEAL READS A S UNDER:- 'AFTER ANALYSING THE FACTS OF THIS CASE, CONSIDERIN G THE SUBMISSIONS MADE BY THE LEARNED ADVOCATES FOR THE PARTIES AND THE MATERIALS PLACED BEFORE US, WE CANNOT BRUSH ASIDE THE FACT THAT THE ASSESSEE COMPANY IS A WELL KNOWN AND REPUTED CHARTERED ACCOUNTANT FIRM AND A TAX CONSULTANT. WE ALSO DO NOT FIND ANY SUBSTANCE IN THE SUBMISSIONS MADE BY DR. PAL; ON THE CONTRARY, IN OUR CONSIDERED OPINION , WE FIND THAT SECTION 271(1)(C) OF THE ACT HAS SPECIFICALLY STATED ABOUT THE CONCEALMENT OF THE PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME WHICH HAS TO BE READ 'EITHER' - 'OR' AND ON THE GIVEN FACTS OF THIS CASE WOULD AUTOMATICALLY COME WITHIN THE FOUR CORNERS OF SECTION 271(1)(C) OF THE ACT AND WE COME TO THE 12 CONCLUSION THAT THE APPELLANT HAVE FAILED TO DISCHA RGE THEIR STRICT LIABILITY TO FURNISH THEIR TRUE AND CO RRECT PARTICULARS OF ACCOUNTS WHILE FILING THE RETURN. WE ARE ALSO OF THE OPINION THAT THE PENALTY UNDER THAT PROVISION IS A CIVIL LIABILITY AND WILFUL CONCEALME NT IS NOT AN ESSENTIAL INGREDIENT FOR ATTRACTING CIVIL LIABILITY AS IN THE MATTER OF PROSECUTION UNDER SECTION 276C, AS HAS BEEN HELD BY THE HON'BLE SUPREME COURT. WE ALSO FIND THAT THE MENS REA IS NOT AN ESSENTIAL ELEMENT FOR IMPOSING PENALTY FOR BREACH OF CIVIL OBLIGATIONS OR LIABILITIES. WE, THEREFORE, ACCEPT THE CONTENTION OF MR. SHOME AND DISMISS THE APPEAL ANSWERING THE QUESTIONS IN THE NEGATIVE.' 14. DURING THE COURSE OF HEARING THIS APPEAL AGAINST THE JUDGMENT AND ORDER OF THE CALCUTTA HIGH COURT, WE HAD REQUIRED THE ASSESSEE TO EXPLAIN TO US HOW AND WHY THE MISTAKE WAS COMMITTED. 15. THE ASSESSEE HAS FILED AN AFFIDAVIT DATED 14 TH SEPTEMBER, 2012 IN WHICH IT IS STATED THAT THE ASSESSEE IS ENGAGED IN MULTIDISCIPLINARY MANAGEMENT CONSULTING SERVICES AND IN THE RELEVANT YEAR IT EMPLOYED AROUND 1000 EMPLOYEES. IT HAS A SEPARATE ACCOUNTS DEPARTMENT WHICH MAINTAINS DAY TO DAY ACCOUNTS, PAY ROLLS ETC. IT IS STATED IN THE AFFIDAVIT THAT PERHAPS THERE WAS SOME CONFUSION BECAUSE THE PERSON PREPARING THE RETURN WAS UNAWARE OF THE FACT THAT THE SERVICES OF SOME EMPLOYEES HAD BEEN TAKEN OVER UPON ACQUISITION OF A BUSINESS, BUT THEY WERE NOT MEMBERS OF AN APPROVED GRATUITY FUND UNLIKE OTHER EMPLOYEES OF THE ASSESSEE. UNDER THESE CIRCUMSTANCES, THE TAX RETURN WAS FINALIZED AND FILLED IN BY A NAMED PERSO N WHO WAS NOT A CHARTERED ACCOUNTANT AND WAS A COMMON RESOURCE. 16. IT IS FURTHER STATED IN THE AFFIDAVIT THAT THE RETURN WAS SIGNED BY A DIRECTOR OF THE ASSESSEE WHO PROCEEDED ON THE BASIS THAT THE RETURN-WAS CORRECTL Y DRAWN UP AND SO DID NOT NOTICE THE DISCREPANCY BETWEEN THE TAX AUDIT REPORT AND THE RETURN OF 13 INCOME. 17. HAVING HEARD LEARNED COUNSEL FOR THE PARTIES, W E ARE OF THE VIEW THAT THE FACTS OF THE CASE ARE RATH ER PECULIAR 'AND SOMEWHAT UNIQUE. THE ASSESSEE IS UNDOUBTEDLY A REPUTED FIRM AND HAS GREAT EXPERTISE AVAILABLE WITH IT. NOTWITHSTANDING THIS, IT IS POSS IBLE THAT EVEN THE ASSESSEE COULD MAKE A 'SILLY' MISTAKE AND INDEED THIS HAS BEEN ACKNOWLEDGED BOTH BY THE TRIBUNAL AS WELL AS BY THE HIGH COURT. 18. THE FACT THAT THE TAX AUDIT REPORT WAS FILED ALONG WITH THE RETURN AND THAT IT UNEQUIVOCALLY STATED THAT THE PROVISION FOR PAYMENT WAS NOT ALLOWABLE UNDER SECTION 40A(7) OF THE ACT INDICATES THAT THE ASSESSEE MADE A COMPUTATION ERROR IN ITS RETURN OF INCOME. APART FROM THE FACT THAT THE ASSESSEE DID NOT NOTICE THE ERROR, IT WAS NOT EVEN NOTICED EVEN BY THE ASSESSING OFFICER WHO FRAMED THE ASSESSMENT ORDER. IN THAT SENSE, EVEN THE ASSESSING OFFICER SEEMS TO HAVE MADE A MISTAKE IN OVERLOOKING THE CONTENTS OF THE TAX AUDIT REPORT. 19. THE CONTENTS OF THE TAX AUDIT REPORT SUGGEST THAT THERE IS NO QUESTION OF THE ASSESSEE CONCEALING ITS INCOME. THERE IS ALSO NO QUESTION OF THE ASSESS EE FURNISHING ANY INACCURATE PARTICULARS. IT APPEARS T O US THAT ALL THAT HAS HAPPENED IN THE PRESENT CASE I S THAT THROUGH A BONA FIDE AND INADVERTENT ERROR, THE ASSESSEE WHILE SUBMITTING ITS RETURN, FAILED TO ADD THE PROVISION FOR GRATUITY TO ITS TOTAL INCOME. THI S CAN ONLY BE DESCRIBED AS A HUMAN ERROR WHICH WE ARE ALL PRONE TO MAKE. THE CALIBRE AND EXPERTISE OF THE ASSESSEE HAS LITTLE OR NOTHING TO DO WITH THE INADVERTENT ERROR. THAT THE ASSESSEE SHOULD HAVE BEEN CAREFUL CANNOT BE DOUBTED, BUT THE ABSENCE OF DUE CARE, IN A CASE SUCH AS THE PRESENT, DOES NOT MEAN THAT THE ASSESSEE IS GUILTY OF EITHER FURNISHI NG INACCURATE PARTICULARS OR ATTEMPTING TO CONCEAL ITS INCOME. 20. WE ARE OF THE OPINION, GIVEN THE PECULIAR FACT S OF THIS CASE, THAT THE IMPOSITION OF PENALTY ON THE 14 ASSESSEE IS NOT JUSTIFIED. WE ARE SATISFIED THAT TH E ASSESSEE HAD COMMITTED AN INADVERTENT AND BONA FIDE ERROR AND HAD NOT INTENDED TO OR ATTEMPTED TO EITHER CONCEAL ITS INCOME OR FURNISH INACCURATE PARTICULARS. 21. UNDER THESE CIRCUMSTANCES, THE APPEAL IS ALLOWED AND THE ORDER PASSED BY THE CALCUTTA HIGH COURT IS SET ASIDE. NO COSTS. 5.1 WE HAVE PERUSED THE AFORESAID ORDER FROM HONBL E APEX COURT. WE FIND THAT IN PARA 15 OF THE ORDER, AN AFFIDAVIT DATED 14.9.2012 WAS FILED BY THE ASSESSEE TENDERING THAT THERE WERE AROUND 1000 EMPLOYEES, HAVING SEPARATE ACCOUNTS, PAYROLL ETC. A ND DUE TO ACQUISITION OF BUSINESS, THERE WAS CONFUSION IN PRE PARING THE RETURN AS SOME OF THE MEMBERS WERE NOT HAVING APPROVED GRA TUITY FUNDS UNLIKE OTHER EMPLOYEES AND IN PARA 18, THE TAX AUDI T REPORT WAS FILED ALONG WITH THE RETURN INDICATING ERROR IN THE COMPUTATION IN THE RETURN OF INCOME WHICH WAS EVEN NOT NOTICED BY THE ASSESSEE AS WELL AS BY THE ASSESSING OFFICER, WHO FRAMED THE AS SESSMENT. IN PARA 19, ANOTHER FACT HAS BEEN MENTIONED THAT EVEN IN TAX AUDIT REPORT, IT WAS SUGGESTED THAT THERE WAS NO CONCEALM ENT OF INCOME. EVEN THE ASSESSEE FILED THE REVISED RETURN. IN VIEW OF THESE PECULIAR FACTS, THE HONBLE APEX COURT REACHED TO A PARTICUL AR CONCLUSION THAT THERE WAS INADVERTENT AND BONA FIDE MISTAKE WI THOUT INTENDING TO CONCEAL ITS INCOME OR TO FURNISH INACCURATE PART ICULARS. HOWEVER, IN THE PRESENT APPEAL, THE FACTS ARE ALTOGETHER DIF FERENT BECAUSE INSPITE OF POINTING OUT BY THE AUDITOR OF THE ASSES SEE HIMSELF CERTAIN GLARING MISTAKES, THE ASSESSEE INTENTIONALLY AND DE LIBERATELY 15 AVOIDED THE SUGGESTIONS OF THE AUDITOR AND EVEN DID NOT FILE THE REVISED RETURN AFTER DETECTION BY THE DEPARTMENT. E VEN THE ASSESSEE FILED WRONG PARTICULARS OF INCOME. IT IS ALSO PERTI NENT TO MENTION HERE THAT THE ASSESSEE NEVER FILED ANY APPEAL AGAIN SUCH ADDITION FULLY KNOWING THAT THE DEDUCTIONS CAN NEVER BE ALLO WED. THUS, IT WAS A DELIBERATE ATTEMPT ON THE PART OF THE ASSESSE E TO FURNISH INACCURATE PARTICULARS OF ITS INCOME. IN THE CASE D ECIDED BY THE HONBLE SUPREME COURT THE FACT THAT ASSESSEE CAME F ORWARD TO FILE THE REVISED RETURN AND ASSESSMENT WAS FRAMED AT THE REVISED RETURN FILED BY THE ASSESSEE. FILING OF REVISED RETURN SUP PORTS THE BONA FIDE INTENTION OF THE ASSESSEE OF NOT FURNISHING INACCUR ATE PARTICULARS OF INCOME. THEREFORE, WITH UTMOST REGARD TO THE DECISI ON FROM HONBLE APEX COURT, CLEAR FACTS ARE OOZING OUT THAT THE FAC TS OF THE INSTANT APPEAL ARE DISTINGUISHABLE, CONSEQUENTLY, THIS DECI SION MAY NOT HELP THE ASSESSEE. IT IS NOT A CASE OF MAKING INCOR RECT/WRONG CLAIM RATHER THE ASSESSEE DELIBERATELY FURNISHED INACCURA TE PARTICULARS OF ITS INCOME AND IN THE ABSENCE OF DETECTION FROM THE DEPARTMENT, THERE WAS ALL POSSIBILITIES THAT SUCH CLAIM WOULD H AVE GONE UNNOTICED CAUSING UNDUE LOSS TO THE REVENUE. AT THE SAME TIME, THE ASSESSEE HAS NOT ESTABLISHED ITS BONA FIDE AT A NY STAGE. THE ASSESSEE HAS DELIBERATELY FURNISHED INACCURATE PART ICULARS WITH INTENTION TO CONCEAL ITS INCOME, THEREFORE, THE CON CLUSION DRAWN IN THE IMPUGNED ORDER IS REVERSED. THE APPEAL OF THE R EVENUE IS, CONSEQUENTLY, ALLOWED. 7. SO FAR AS THE CROSS-OBJECTION, FILED BY THE ASSE SSEE, IS CONCERNED, IN WHICH RELIANCE HAS BEEN PLACED UPON T HE DECISION IN 16 RELIANCE PETRO PRODUCTS (SUPRA) AS PER DISCUSSION M ADE HEREINABOVE, THE FACTS ARE DISTINGUISHABLE FROM THE FACTS OF INSTANT CASE. SINCE WE HAVE REVERSED THE ORDER OF THE LD. C IT(A), IT HAS BECOME INFRUCTUOUS. FINALLY, THE APPEAL OF THE REVENUE IS ALLOWED WHER EAS THE CROSS-OBJECTION OF THE ASSESSEE IS DISMISSED BEING INFRUCTUOUS. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 31.1.2013 . SD/- SD/- (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31.1.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYS!