M/s. JKM Overseas Pvt. Ltd., Kolkata V. ITO, Ward - 12(1), Kolkata, Kolkata

ITA 538/KOL/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1625 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 05-04-2011
• Court: TRIBUNAL
• Department Lawyers: ASOKE KUMAR DEY
• Assessee Lawyers: K K GOSWAMI
• Keywords: Wrong claim
• Section: 80HHC

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [ () . .. . . .. . , ,, , , ! ''# $ ''# $ ''# $ ''# $ ] ]] ] [BEFORE HONBLE SRI P.K.BANSAL, AM & HONBLE SRI GEORGE MATHAN, JM] !& !& !& !& /ITA NOS.538/KOL/2011 '( )*/ ASSESSMENT YEARS : 2004-05 ($, / APPELLANT ) - - ( ./$, /RESPONDENT) M/S.JKM OVERSEAS PVT.LTD. I.T.O., WARD-12(1), KOLKATA -VERSUS- KOLKATA (PAN:AAACJ 6327 L) $, 0 1 / FOR THE APPELLANT: SHRI K.K.GOSWAMI ./$, 0 1 / FOR THE RESPONDENT: SHRI ASOKE KUMAR DEY, SR.DR 2 3 0 4 /DATE OF HEARING : 07.02.2013 5) 0 4 /DATE OF PRONOUNCEMENT : 07.02.2013. 6 / ORDER PER BENCH THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)- XXXVI, KOLKATA DATED 14.01.2011. 2. IN THIS APPEAL THE ISSUE INVOLVED IS RELATING T O THE LEVYING OF PENALTY U/S 271(1)(C) OF THE IT ACT BY THE AO AND SUSTAINED BY THE LD. CIT(A). 3. THE BRIEF FACTS RELATING TO THIS GROUND IN THIS APPEAL ARE THAT THE AO INITIATED PENALTY U/S 271(1)(C) OF THE IT ACT BY ISSUING NOTI CE U/S 274 R.W.S. 271 ON 19.12.2006. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASS ESSEE CLAIMED DEDUCTION U/S 80HHC AMOUNTING TO RS.9,22,312/- ON THE BASIS OF TH E CERTIFICATE RECEIVED FROM CHARTERED ACCOUNTANT IN FORM NO.10CCAC PRESCRIBED F OR CLAIM OF DEDUCTION U/S 80HHC OF THE ACT. THE CLAIM MADE BY THE ASSESSEE W AS REJECTED BY THE AO AND SUSTAINED BY THE LD. CIT(A). THE AO ON THE BASIS OF THE REJECTION OF THE CLAIM OF THE ASSESSEE U/S 80HHC TOOK A VIEW THAT THE ASSESSEE HA D DELIBERATLY EITHER NOT FURNISHED ITA NOS .538/KOL/2011 2 THE INFORMATION BEFORE THE DEPARTMENT OR FURNISHED INACCURATE PARTICULARS OF THE INCOME AND THEREFORE IMPOSED THE PENALTY U/S 271(1) (C) OF THE ACT AMOUNTING TO RS.2,93,788/- BEING 100% OF THE TAX SOUGHT TO BE EV ADED. THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A). THE CIT(A) CONFIRMED THE ORD ER OF THE AO. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDER ED THE SAME. IT WAS DENIED BY THE REVENUE THAT THE CLAIM HAS BEEN MADE BY THE ASS ESSEE ON THE BASIS OF THE CERTIFICATE ISSUED BY THE CHARTERED ACCOUNTANT U/S 80HHC IN FORM NO.10CCAC. UNDER THESE FACTS, IN OUR OPINION, IT CANNOT BE SAI D THAT THE ASSESSEE HAS FILED INACCURATE PARTICULARS OF THE INCOME OR DELIBERATEL Y NOT FURNISHED THE CERTIFICATE ISSUED BY THE CHARTERED ACCOUNTANT IN FORM NO.10CCAC WHIC H WAS PART OF THE RETURN OF THE ASSESSEE AS IS APPARENT IN PARA 3 OF THE PENALTY OR DER. THUS THE CLAIM OF THE ASSESSEE WAS DULY SUPPORTED BY THE CERTIFICATE ISSUED BY AN EXPERT EVEN OTHERWISE IT CANNOT BE SAID THAT THE ASSESSEE HAS MADE A FALSE CLAIM. MERE LY DEDUCTION HAS NOT BEEN ALLOWED TO THE ASSESSEE DOES NOT MEAN THAT THE ASSESSEE HAS FILED INACCURATE PARTICULARS OF THE INCOME. IT IS NOT A CASE WHERE IT CAN BE SAID THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF THE INCOME THAT IS NOT THE CASE OF THE REVENUE. THIS IS THE CLAIM WHICH WAS MADE BY THE ASSESSEE. THE BONA FIDE OF THE CLAIM OF THE ASSESSEE IS GENUINELY PROVED BY THE FACT THAT THE CLAIM WAS MADE ON THE BASIS OF THE CE RTIFICATE ISSUED BY THE CHARTERED ACCOUNTANT. THE ASSESSEE, IN OUR OPINION, CAN RELY ON THE CERTIFICATE OF A PROFESSIONAL. OUR AFORESAID VIEW IS DULY SUPPORTED BY THE DECISIO N OF THE GUJARAT HIGH COURT IN THE CASE OF BTX CHEMICAL P.. LTD. VS CIT 288 196 (GUJ). THE HONBLE SUPREME COURT IN THE CASE OF CIT VS RELIANCE PETROCHEMICALS LIMITED 322 ITR 158 (SC) HAS HELD THAT IN MERE MAKING OF A CLAIM WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INC OME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INAC CURATE PARTICULARS OF INCOME. THE SAID VIEW HAS BEEN TAKEN BY THE HONBLE SUPREME COU RT IN THE CASE OF CIT VS RELIANCE PETROCHEMICALS PVT. LTD. 322 ITR 158 WHICH CONFIRMS ULTIMATELY THE ORDER OF THE TRIBUNAL DISMISSED THE PENALTY LEVIED BY THE AO . THE SAID ORDER WAS PASSED BY THE UNDERSIGNED. WE THEREFORE SET ASIDE THE ORDER OF TH E LD. CIT(A) AND DELETE THE PENALTY LEVIED U/S 271(1)(C) OF THE IT ACT. ITA NOS .538/KOL/2011 3 5. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE I S ALLOWED. ORDER PRONOUNCED IN THE COURT ON 07.02.2013. SD/- SD/- [ .''# $ , ] [ .., ,, , ] [ GEORGE MATHAN ] [P.K.BANSAL] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( (4 4 4 4) )) ) DATE: 07.02.2013. R.G.(.P.S.) 6 0 .''7 87)9- COPY OF THE ORDER FORWARDED TO: 1. M/S.JKM OVERSEAS PVT. LTD., C/O AGARWAL VISHWANATH & ASSOCIATES, 7-B, DACRES LANE,.1 ST FLOOR, KOLKATA-700069.. 2 I.T.O., WARD-12(1), KOLKATA 3 . CIT KOLKATA 4 . CIT(A)-CENTRAL-XXXVI, KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. /7 .'/ TRUE COPY, 62/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES