The Blue Dart Diagnostic, Malappuram V. ITO, Tirur

ITA 494/COCH/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64848 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-09-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 31-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SREENIVASU KOLLIPAKA
• Assessee Lawyers: C B M WARRIER
• Section: 43B

Judgement Text

1 ITA NO. 494/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.T.A NO. 494/COCH/2010 (ASSESSMENT YEAR 2002-03) M/S BLUE DART DIAGNOSTICS VS ITO, WD.2 OPP POLICE STATION, A.K. ROAD TIRUR MALAPPURAM PAN : AAEFB9166A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI CBM WARRIER RESPONDENT BY : SHRI SREENIVASU KOLLIPAKA DATE OF HEARING : 18-09-2012 DATE OF PRONOUNCEMENT : 12-10-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE TAXPAYER IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME-TAX(A)-I, CALICUT DATED 23-06-2010 CONFIRMIN G THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. 2. SHRI CBM WARRIER, THE LD.REPRESENTATIVE FOR THE TAXPAYER SUBMITTED THAT THE ASSESSING OFFICER LEVIED PENALTY IN RESPECT OF RS. 3,51,540. ACCORDING TO THE LD.REPRESENTATIVE, AT THE BEST, THE PENALTY CAN BE LEVIED IN RESPECT OF RS.3,29,158 WITH REGARD TO SALES SUPPRESSION. AS FAR AS THE SA LES-TAX COLLECTED BUT NOT REMITTED IS CONCERNED THIS WAS DISCLOSED IN THE PRO FIT & LOSS ACCOUNT. THEREFORE, 2 ITA NO. 494/COCH/2010 IT CANNOT BE SAID THAT THERE WAS CONCEALMENT OF INC OME WITH REGARD TO THE SALES- TAX COLLECTED. WITH REGARD TO THE COMPOUNDING FEE PAID BY THE TAXPAYER TO THE EXTENT OF RS.20,000 THE SAME WAS ALSO DISCLOSED IN THE PROFIT & LOSS ACCOUNT. THEREFORE, THERE CANNOT BE ANY PENALTY SINCE THE SA ME WAS DISCLOSED IN THE PROFIT & LOSS ACCOUNT. ACCORDING TO THE LD.REPRESENTATIVE , HE HAS NO OBJECTION TO LEVY PENALTY IN RESPECT OF SALES SUPPRESSION TO THE EXTE NT OF RS.3,29,158. WE HEARD SHRI SRINIVASU KOLLIPAKA, THE LD.DR ALSO. 3. WE HAVE CAREFULLY GONE THROUGH THE ORDER OF LOWE R AUTHORITIES. WITH REGARD TO SALES-TAX COLLECTED BUT NOT REMITTED, THE ASSESSING AUTHORITY MADE ADDITION OF RS.2,383. THE FACT THAT THE TAXPAYER C OLLECTED RS. 3,71,847 AS SALES- TAX AND HAS REMITTED ONLY RS.3,69,464 IS REFLECTED FROM THE MATERIALS AVAILABLE ON RECORD. THEREFORE, THE TAXPAYER HAS FURNISHED ALL THE DETAILS WITH REGARD TO COLLECTION OF SALES-TAX AND REMITTANCE THEREOF. THE DIFFERENCE OF R. 2,383 WAS ADDED U/S 43B OF THE ACT. WHEN THE TAXPAYER HAS DI SCLOSED THE ENTIRE DETAILS AND CLAIMED THE SAME AS DEDUCTION, WE CANNOT SAY THAT T HERE WAS A CONCEALMENT OF INCOME. A MERE CLAIM OF DEDUCTION CANNOT BE CONSTR UED AS CONCEALMENT IN VIEW OF THE JUDGMENT OF THE APEX COURT IN RELIANCE PETRO PRODUCTS PVT LTD 322 ITR 158 (SC). SIMILARLY, THE COMPOUNDING FEE OF RS.20,000 PAID TO SALES-TAX DEPARTMENT IS ALSO REFLECTED FROM THE MATERIAL AVAILABLE BEFORE T HE ASSESSING AUTHORITY. IN FACT, THE ASSESSING AUTHORITY GATHERED THE INFORMATION AB OUT THIS PAYMENT OF R.20,000 ONLY FROM THE PROFIT & LOSS ACCOUNT WHICH WAS FILED BY THE TAXPAYER. THEREFORE, WE CANNOT SAY THAT THERE WAS CONCEALMENT IN RESPECT OF THIS ADDITION. ACCORDINGLY, WE AGREE WITH THE SUBMISSION OF THE LD .REPRESENTATIVE FOR THE TAXPAYER THAT THERE IS NO CONCEALMENT OF INCOME WIT H REGARD TO THE COMPOUNDING FEE PAID BY THE TAXPAYER TO THE EXTENT OF RS.20,000 AND THE DIFFERENCE IN PAYMENT OF SALES-TAX COLLECTED AND PAID TO THE EXTENT OF RS. 2,383. THEREFORE, IN RESPECT OF 3 ITA NO. 494/COCH/2010 THESE TWO ADDITIONS, THERE CANNOT BE ANY CONCEALMEN T PENALTY U/S 271(1)(C) OF THE ACT. 4. WITH REGARD TO SALES SUPPRESSION TO THE EXTENT O F RS.3,29,158 THE LD.REPRESENTATIVE SUBMITTED THAT HE HAS NO OBJECTIO N FOR LEVY OF PENALTY. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT LEVY OF PENALTY AT THE MINIMUM RATE WOULD MEET THE ENDS OF JUSTICE IN RESP ECT OF SALES SUPPRESSION TO THE EXTENT OF RS.3,29,158. ACCORDINGLY, WE MODIFY THE ORDER OF THE LOWER AUTHORITIES AND DIRECT THE ASSESSING AUTHORITY TO L EVY PENALTY AT THE MINIMUM RATE IN RESPECT OF SUPPRESSED SALES TO THE EXTENT OF RS. 3,29,158 ONLY. HOWEVER, IN RESPECT OF SALES-TAX COLLECTED BUT NOT REMITTED TO T HE EXTENT OF RS.2,383 AND COMPOUNDING FEE OF RS. 20,000, THERE CANNOT BE ANY CONCEALMENT PENALTY. ACCORDINGLY, THE PENALTY LEVIED BY THE LOWER AUTHOR ITIES IN RESPECT OF THESE TWO ITEMS IS DELETED. 5. IN THE RESULT, APPEAL OF THE TAXPAYER IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH OCTOBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 12 TH OCTOBER, 2012 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH