DCIT, New Delhi V. M/s Excel Pack Ltd., New Delhi

ITA 5338/DEL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58954 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-03-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 29-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARUN MALHOTRA
• Section: 43B; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : B : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.5338/DEL/2010 ASSESSMENT YEAR : 2006-07 DY. COMMISSIONER OF INCOME TAX, CIRCLE 11(1), NEW DELHI. VS. M/S EXCEL PACK LTD., 1004-05-06, DEVIKA TOWERS, 6 NEHRU PLACE, NEW DELHI. PAN : AABCE0195J (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ARUN MALHOTRA, CA REVENUE BY : SHRI ALOK SINGH, SR.DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIRECT ED AGAINST THE ORDER PASSED BY THE CIT (A) DATED 17 TH SEPTEMBER, 2010 IN RESPECT OF ASSESSMENT YEAR 2006-07. THE GROUND OF APPEAL READS AS U NDER:- 1. THE LD. CIT (A) ERRED IN DELETING THE PENALTY U/S 2 71 (1)(C) OF THE IT ACT AMOUNTING TO RS.3,63,573/-. 2. THE IMPUGNED PENALTY HAS BEEN LEVIED ON THE ASSESSEE ON THE ADDITION OF ` 10,80,134/- ADDED TO THE INCOME OF TH E ASSESSEE U/S 43B OF THE INCOME TAX ACT, 1961. THE ADDITION WAS ON AC COUNT OF SALES-TAX LIABILITY OF THE ASSESSEE WHICH WAS NOT PAID BY THE ASSESSEE TILL THE DATE OF FILING THE RETURN, BUT IT WAS PAID SUBSEQUENTL Y ON 24 TH MARCH, 2007, 28 TH MARCH, 2007 AND 21 ST OCTOBER, 2007. THE ASSESSING OFFICER LEVIED CONCEALMENT PENALTY ON THIS ADDITION VIDE IMP UGNED ORDER DATED 25 TH JUNE, 2009 BY HOLDING THAT THE ASSESSEE HAS CONCEALED T HE ITA NO.5338/DEL/2010 2 PARTICULARS OF ITS INCOME. LEARNED CIT (A) HAS DELETE D THE SAID PENALTY ON THE GROUND THAT THE ASSESSEE WAS ACCOUNTING FOR THE SA LES NET OF TAX IN THE PROFIT & LOSS ACCOUNT AND, THEREFORE, DID NOT CLAIM TAXES PAID AS EXPENDITURE. THE AMOUNT OF SALES-TAX COLLECTED FRO M CUSTOMER WAS CREDITED TO SALES-TAX PAYABLE ACCOUNT AND WAS TREATED AS CURRENT LIABILITY. SINCE, AT NO POINT OF TIME, THE ASSESSEE CLA IMED THE SAID AMOUNT AS EXPENDITURE, NO CONCEALMENT WAS INVOLVED. HE ALSO OBSERVED THAT THE FACT THAT THE ASSESSEE DID NOT DEPOSIT THE SAID AMOUNT WAS CLEARLY DESCRIBED IN THE AUDIT REPORT IN T HE COLUMN RELEVANT TO SECTION 43B AND REFERRING TO THE DECISIO N OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETROPR ODUCTS PVT. LTD. 322 ITR 158 (SC) THE PENALTY HAS BEEN DELETED. THE DEPARTMENT IS AGGRIEVED, HENCE, IN APPEAL. 3. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENTI ONS HAVE CAREFULLY BEEN CONSIDERED. THE FACT THAT THE SAID AM OUNT OF SALES-TAX WAS PAID BY THE ASSESSEE IN SUBSEQUENT YEARS IS ALSO RECORDED IN THE ASSESSMENT ORDER. THE FACT THAT THE ASSESSEE DID NOT DEPOSI T THIS AMOUNT WAS DULY DESCRIBED IN THE AUDIT REPORT FILED B Y THE ASSESSEE. THUS, IT WAS A CASE OF DISALLOWANCE WHICH WAS APPARENT A ND DESCRIBED IN THE AUDIT REPORT. THEREFORE, IT CANNOT BE SAID T HAT THE ASSESSEE HAS CONSCIOUSLY CONCEALED THE PARTICULARS REGARDING NON-PA YMENT OF SALES- TAX. SINCE THE FACTS WERE STATED BY THE ASSESSEE IN THE AUDIT REPORT ITSELF AND THE ADDITION WAS NOT FURTHER CONTESTED AND THE PAYMENTS WERE MADE IN SUBSEQUENT YEARS, WE DECLINE TO INTERFERE IN THE DELETION MADE BY THE CIT (A),THEREFORE, THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED. ITA NO.5338/DEL/2010 3 4. IN THE RESULT, THE APPEAL IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 23.03.20 12. SD/- SD/- [B.C. MEENA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 23.03.2012. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES