Shayona pulp conversion mills P. ltd, Aurangabad V. ITO Wd-1[1] Aurangabad, Aurangabad

ITA 548/PUN/2007

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9842 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-10-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 18-04-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINITA MENON
• Assessee Lawyers: AJAY R SINGH
• Keywords: Depreciation; Wrong claim; Bad and doubtful debts; Bonafide mistake
• Section: 43B

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.548/PN/2007 (ASSESSMENT YEAR 2003-04) SHAYONA PULP CONVERSION MILLS PVT. LTD., D-8, MIDC, WALUJ, AURANGABAD PAN NO. AAECS 0321F .. APPELLANT VS. INCOME TAX OFFICER, WARD-1(1), 2 ND FLOOR, JEEVAN SUMAN, LIC BUILDING, N-5, CIDCO, AURANGABAD. .. RESPONDENT ASSESSEE BY : SRI AJAY R. SINGH DEPARTMENT BY : SMT. VINITA MENON DATE OF HEARING : 01-11-2012 DATE OF PRONOUNCEMENT : 05-11-2012 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 31-01- 2007 OF THE CIT(A)-I, AURANGABAD RELATING TO ASSESS MENT YEAR 2003-04. 2. THE ASSESSEE IN THE GROUNDS OF APPEAL HAS CHALLE NGED THE ORDER OF CIT(A) IN SUSTAINING THE PENALTY OF RS.22,64,010/- LEVIED BY THE AO U/S.271(1)(C) OF THE INCOME TAX ACT. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS ENGAGED IN MANUFACTURING OF CRAFT PAPER OF VARIOUS THICKNESS REQUIRED MAINLY BY CORRUGATED BOX MANUFACTURING COMPANIES. IT FILED ITS RETURN OF IN COME FOR THE IMPUGNED ASSESSMENT YEAR ON 28-11-2003 DECLARING LOSS OF RS. 2,69,89,772/-. THE AO COMPLETED THE ASSESSMENT DETERMINING THE TOTAL LOSS AT RS.1,80,09,010/-. WHILE COMPLETING THE ASSESSMENT THE AO HAD MADE THE FOLLO WING DISALLOWANCES : PROFESSIONAL TAX RS. 27,340/- U/S/43B OF TH E I.T. ACT PROVIDENT FUND RS. 1,08,227/- U/S/43B OF THE I.T. ACT TERM LOAN INTEREST RS. 60,00,000/- U/S/43B OF T HE I.T. ACT DONATION RS. 25,000/- 2 SUBSEQUENTLY THE AO INITIATED PENALTY PROCEEDINGS U /S.271(1)(C) OF THE INCOME TAX ACT. IN RESPONSE TO SUCH PENALTY PROCEEDINGS THE AS SESSEE SUBMITTED THAT THE COMPANY WAS FACING DIFFICULTIES BECAUSE OF LATE COM MISSIONING OF THE PROJECT, SLUMP IN THE MARKET AND OTHER INITIAL TEETHING PROB LEMS LEADING TO ENORMOUS CASH LOSSES. DUE TO CONTINUED MOUNTING LOSSES THE COMPA NY HAS BEEN REFERRED TO BIFR FOR ITS REHABILITATION. IN VIEW OF CASH LOSS THE C OMPANY WAS UNABLE TO PAY INTEREST AS WELL AS PRINCIPLE TO ITS BANKERS IN THE RELEVANT YEAR. THE COMPANY PAID PARTIAL INTEREST TO THE BANKERS AND AFTER ENORMOUS PRESSURE APPLIED FOR RESTRUCTURING OF FINANCES TO THE BANK. DUE TO NPA ACCOUNT NO INTERE ST WAS DEBITED BY THE BANK ON REGULAR BASIS. HOWEVER, WHATEVER THE COMPANY PAID WAS ADJUSTED TOWARDS INTEREST PURSUANT TO THE STIPULATION MADE BY THE BANK IN THE TERM LOAN AGREEMENT. IT WAS SUBMITTED THAT COMPANY FINALISED ITS ACCOUNTS AND S UBMITTED INCOME TAX RETURNS REGULARLY WELL WITHIN THE STIPULATED TIME WITH ALL REQUIRED PARTICULARS. AS THE BANK ACCOUNT OF COMPANY WAS TERMED NPA, THE COMPANY HAD BEEN PAYING THE AMOUNT IN THE ACCOUNT TOWARDS THE INTEREST DUES WHICH HAS ALS O BEEN REFLECTED IN THE PROFIT AND LOSS ACCOUNT OF THE RELEVANT YEAR. SO FAR AS T HE ISSUE RELATING TO PROFESSIONAL TAX OF RS.27,2350/-, PF CONTRIBUTION OF RS.1,08,227 /- AND DONATION OF RS.25,000/- IT WAS SUBMITTED THAT THE COMPANY HAS ALREADY ADDED THE SAME IN THE COMPUTATION OF INCOME. SO FAR AS BAD DEBTS AMOUNTING TO RS.50, 000/- IS CONCERNED IT WAS SUBMITTED THAT THE DEBTS HAVE BEEN CREATED OUT OF G OODS RETURNS AND HAVE BEEN WRITTEN OFF BEING UNRECOVERABLE WHICH CAN BE VERIFI ED FROM THE FINAL ACCOUNTS. RELYING ON VARIOUS DECISIONS IT WAS SUBMITTED THAT THE PENALTY PROCEEDINGS SHOULD BE DROPPED. 4. HOWEVER, THE AO WAS NOT CONVINCED WITH THE EXPLA NATION GIVEN BY THE ASSESSEE. HE NOTED THAT THERE ARE TWO COMPUTATIONS OF INCOME ANNEXED TO THE RETURN OF INCOME. IN ONE OF THE COMPUTATION ALL TH E DISALLOWANCES MADE BY THE AO 3 HAVE BEEN ADDED INTO THE INCOME OF THE ASSESSEE AND THE LOSS HAS BEEN REDUCED. HOWEVER, IN ANOTHER COMPUTATION, THE DISALLOWANCES MADE BY THE AO HAVE NOT BEEN ADDED IN THE INCOME OF THE ASSESSEE AND THUS T HE LOSSES ARE NOT REDUCED. THE AO FURTHER NOTED THAT THE AUDITOR IN HIS AUDIT REPO RT HAS CLEARLY POINTED OUT IN COLUMN NO.21 OF THE AUDIT REPORT THAT FOLLOWING AMO UNTS HAVE BEEN DEBITED TO PROFIT AND LOSS ACCOUNT AND NOT PAID : (A) PROFESSIONAL TAX RS.27,340/- (B) TERM LOAN RS.60,00,000/- THEREFORE, THE AO WAS OF THE OPINION THAT THE ASSES SEE SHOULD HAVE GOT THESE AMOUNTS DISALLOWED IN THE COMPUTATION OF INCOME. H E NOTED THAT DURING A.Y. 2002-03 THE ASSESSEE ADDED TERM LOAN OF RS.60 LAKHS , PROVIDENT FUND OF RS.1,39.029/- AND PROFESSIONAL TAX OF RS.40,045/-. THEREFORE, WHEN THE ASSESSEE WAS AWARE OF THE PROVISIONS IN THE PRECEDING YEAR, HE CANNOT SAY THAT IT IS A MERE GENUINE ERROR OR TECHNICAL OR VENIAL BREACH. THE A O FURTHER NOTED THAT THE SUBMISSION OF THE ASSESSEE THAT IT HAD ADDED PROFES SIONAL TAX, PF AND DONATION IN THE COMPUTATION OF INCOME IS NOT CORRECT AS PER THE RETURN OF INCOME FILED FOR A.Y. 2003-04. REFERRING TO A NUMBER OF DECISIONS AND DI STINGUISHING THE DECISIONS RELIED ON BY THE ASSESSEE THE AO LEVIED PENALTY OF RS.22,64,010/- BEING 100% OF THE TAX SOUGHT TO BE EVADED ON THE CONCEALED INCOME OF RS.61,60,567/-. 5. IN APPEAL THE LEARNED CIT(A) UPHELD THE PENALTY SO LEVIED BY THE AO. WHILE DOING SO, HE NOTED THAT THE ASSESSEE ADMITTEDLY HAD NOT ADDED THE UNPAID AMOUNT RELATING TO PROFESSIONAL TAX, PF DUES, TERM LOAN IN TEREST AND DONATION. HE NOTED THAT SINCE THE ASSESSEE FILED TWO SETS OF COMPUTATI ON OF INCOME, IT INDICATES THAT THE ASSESSEE WAS AWARE OF THE PROVISIONS OF SECTION 43B OF THE ACT. THE ASSESSEE HAS NOT CLARIFIED AT ANY STAGE AS TO WHY TWO SETS OF CO MPUTATION OF INCOME WERE PREPARED. HE WAS OF THE OPINION THAT THE COMPUTATI ON SHEET OF INCOME TO BE TAKEN 4 INTO CONSIDERATION UNDER LAW IS THE ONE WHICH MATCH ES WITH THE FORM NO. 1, I.E. RETURN OF INCOME AND THE OTHER COMPUTATION SHEET HA S TO BE IGNORED. HE NOTED THAT THE ACT HAS BEEN AMENDED WHEREIN LIABILITY OF TAX H AS NOTHING TO DO WITH LEVY OF PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT. ACCOR DING TO HIM, PENALTY IS ATTRACTED WHERE INACCURATE PARTICULARS ARE FURNISHE D. SINCE THE ASSESSEE WAS GUIDED BY QUALIFIED CHARTERED ACCOUNTANTS SINCE LAST SO MA NY YEARS AND SINCE THE ASSESSEE WAS ALSO SUBJECTED TO TAX AUDIT U/S.44AB AND SINCE THE CHARTERED ACCOUNTANT IN HIS REPORT HAS CATEGORICALLY MENTIONED THE APPLICATION OF PROVISIONS OF SECTION 43B, THEREFORE, THE ARGUMENTS OF THE ASSESSEE THAT NO PE NALTY SHOULD BE LEVIED IS NOT TENABLE. THE FURTHER SUBMISSION OF THE ASSESSEE TH AT REMISSION OF THE INTEREST BY BANK AND CREDITED TO THE PROFIT AND LOSS ACCOUNT IN SUBSEQUENT YEAR HAS NOTHING TO DO WITH THE RETURN OF INCOME FILED. DISTINGUISHING THE VARIOUS DECISIONS RELIED ON BY THE ASSESSEE BEFORE HIM THE LEARNED CIT(A) UPHEL D THE LEVY OF PENALTY U/S.271(1)(C) MADE BY THE AO. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. 6. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SAME ARGUMENTS AS MADE BEFORE THE AO AND THE CIT(A). HE SUBMITTED THAT TH E AUDIT REPORT SHOWS THAT INTEREST PAYABLE TO BANK HAS NOT BEEN PAID. HE SUB MITTED THAT THE COMPUTATION OF INCOME FOR A.Y. 2002-03 WAS PROPER. SIMILARLY IN T HE RETURN FILED FOR A.Y. 2004- 05 THE BROUGHT FORWARD LOSS HAS BEEN CLAIMED AS PER CORRECT COMPUTATION. HE SUBMITTED THAT THERE WAS NO INTENTION TO CONCEAL AN Y INFORMATION. THE MISTAKE WAS VERY GENUINE SINCE AUDIT WAS MADE AT AURANGABAD AND RETURN WAS FILED AT MUMBAI. DUE TO MIS-COMMUNICATION AND MIS-UNDERSTANDING THE MISTAKE HAD OCCURRED. HE SUBMITTED THAT EVEN THE ALLOWABLE DEDUCTION SUCH AS DEPRECIATION HAS ALSO NOT BEEN CLAIMED. THIS SHOWS THE BONAFIDES OF THE ASSESSEE. THERE WAS NO INTENTION AT ALL TO CONCEAL ANY INFORMATION. REFERRING TO THE DECIS ION IN THE CASE OF CIT VS. 5 RELIANCE PETROPRODUCTS PVT. LTD. REPORTED IN 322 IT R 158 (SC) HE SUBMITTED THAT MAKING INCORRECT CLAIM DOES NOT AMOUNT TO CONCEALME NT OF PARTICULARS. A MERE MAKING OF A CLAIM WHICH IS NOT SUSTAINABLE IN LAW B Y ITSELF WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INC OME OF THE ASSESSEE. REFERRING TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF PWC PVT. LTD. VS. CIT VIDE CIVIL APPEAL NO.6924/2012 ORDER DT. 25-09-12 H E SUBMITTED THAT PROVISION TOWARDS PAYMENT OF GRATUITY WAS NOT ALLOWABLE. ASS ESSEE HAD CLAIMED A DEDUCTION THEREON IN ITS RETURN. DIRECTOR OF THE ASSESSEE PR OCEEDED ON THE BASIS THAT THE RETURN WAS CORRECTLY DRAWN UP. DISCREPANCY BETWEEN THE TA X AUDIT REPORT AND THE RETURN OF INCOME NOT NOTICED. IT WAS HELD AS A HUMAN ERROR A ND THERE WAS NO QUESTION OF THE ASSESSEE CONCEALING ITS INCOME. MERELY IT WAS ABSE NCE OF DUE CARE. REFERRING TO THE DECISION IN THE CASE OF CIT VS. INTERNATIONAL A UDIO VISUAL CO. REPORTED IN 288 ITR 570 (DELHI) HE SUBMITTED THAT FACTS DISCLOSED B UT CLAIM FOR DEDUCTION WAS ERRONEOUS, THERE IS NO CONCEALMENT OF INCOME. REFER RING TO THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS . TIDE WATER DETERGENT CO. VIDE ITA NO.3442/M/2009 ORDER DATED 28-02-2011 HE S UBMITTED THAT NO PENALTY SHOULD BE MADE WHILE MAKING DISALLOWANCE U/S.43B IN RESPECT OF THE INTEREST TO BANK. REFERRING TO THE DECISION OF THE HONBLE PUN JAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. SHAHABAD CO-OPERATIVE SUGAR MIL LS LTD. REPORTED IN 322 ITR 73 (P&H) HE SUBMITTED THAT WRONG CLAIM FOR DEDUCTIO N U/S.80P(2) AND DEPRECIATION DOES NOT AMOUNT TO CONCEALMENT OF INCOME. REFERRIN G TO THE DECISION IN THE CASE OF HINDALCO INDUSTRIES LTD. VS. ACIT REPORTED IN 41 SOT 254 (MUMBAI) HE SUBMITTED THAT CLAIM WHICH IS NOT SUSTAINABLE IN LA W, BY ITSELF, WILL NOT MAKE ASSESSEE LIABLE FOR PENALTY. HE ACCORDINGLY SUBMIT TED THIS IS NOT A FIT CASE WHERE PENALTY U/S.271(1)(C) IS CALLED FOR AND THEREFORE T HE SAME SHOULD BE DELETED. 6 7. THE LEARNED DR ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE CIT(A). SHE SUBMITTED THAT BY INCREASING THE LOSS THE ASSES SEE WANTED TO CARRY FORWARD THE HIGHER LOSS FOR THE FUTURE YEARS. THEREFORE, THIS I S A FIT CASE FOR LEVY OF PENALTY. 8. THE LEARNED COUNSEL FOR THE ASSESSEE IN HIS REJO INDER SUBMITTED THAT IN THE RETURN FILED FOR A.Y. 2004-05 WHICH IS PRIOR TO THE COMPLETION OF ASSESSMENT FOR A.Y. 2003-04 THE ASSESSEE HAD CLAIMED CORRECT BROUG HT FORWARD LOSSES WHICH IS BASED ON CORRECT COMPUTATION. THEREFORE, THE ASSES SEE HAD NOT TAKEN INTO CONSIDERATION THE INCORRECT COMPUTATION IN A.Y. 200 4-05. THE AMOUNT CLAIMED WAS DUE TO BONAFIDE MISTAKE AND NOT WITH INTENT TO EVADE TAX AS THERE WAS NO BENEFIT TO THE ASSESSEE. THE ASSESSEE HAD ALSO OFF ERED THE CESSATION OF LIABILITY TO TAX IN THE SUBSEQUENT YEAR. THEREFORE, THE BONAFID E OF THE ASSESSEE IS PROVED BY ITS ACTION IN SUBSEQUENT YEAR. 9. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECI SIONS CITED BEFORE US. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAD FILED TWO COMPUTATION STATEMENTS ALONG WITH RETURN OF INCOME AND HAD INCORRECTLY NOT ADDED THE DISALLOWABLE PORTION U/S.43B TO THE RETURN OF INCOME. WE FIND THE AO ON THE BASIS OF INCORRECT CLAIM OF DEDUCTIONS WHICH ARE OTHERWISE DISALLOWABLE U/S.43B LEVIED PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT WHICH HAS BEEN UPHELD BY THE LEARNED CIT(A). HOWEVER, IT IS THE SUBMISSION OF THE LEARNED COUNSEL FOR THE AS SESSEE THAT THE WRONG CLAIM WAS DUE TO BONAFIDE MISTAKE AND NOT WITH INTENT TO EVAD E TAX AS THERE WAS NO BENEFIT TO THE ASSESSEE. IT IS ALSO THE SUBMISSION OF THE LEA RNED COUNSEL FOR THE ASSESSEE THAT IT HAS NOT EVEN CLAIMED DEPRECIATION AND IN THE ASSESS MENT PROCEEDINGS THE ASSESSEE HAD READILY ACCEPTED THE MISTAKE AND AGREED FOR THE ADDITION. IT IS ALSO THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT FOR A.Y. 2004-05 THE 7 ASSESSEE HAS CLAIMED CORRECT BROUGHT FORWARD LOSSES AS PER COMPUTATION AND THE RETURN WAS FILED ON 09-09-2005 WHICH IS MUCH BEFORE THE COMPLETION OF THE ASSESSMENT, I.E. ON 20-02-2006. THEREFORE, THE MIS TAKE BEING A BONAFIDE ONE, NO PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT IS LEVI ABLE. 9.1 WE FIND MERIT IN THE ABOVE ARGUMENTS BY THE LEA RNED COUNSEL FOR THE ASSESSEE. FROM THE COMPUTATION OF INCOME FOR A.Y. 2004-05 FILED AT PAGE NO.52 OF THE PAPER BOOK WE FIND THE ASSESSEE HAS CLAIMED BROUGHT FORWARD LOSS FOR A.Y. 2003-04 AT RS.5,66,77,037/- WHICH IS ALMOST MATCHIN G WITH THE CORRECT COMPUTATION OF INCOME FILED AT PAPER BOOK PAGE NO.2 RELATING TO A.Y. 2003-04. HOWEVER, IN THE INCORRECT COMPUTATION WHICH WAS FIL ED ALONG WITH THE RETURN FOR A.Y. 2003-04, THOSE DISALLOWABLE ITEMS WERE NOT THE RE AND THERE IS NO CLAIM EVEN FOR DEPRECIATION. UNDER THESE CIRCUMSTANCES, WE FI ND SOME FORCE IN THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE AS SESSEE HAS NOT GAINED ANYTHING BY NOT DISALLOWING THOSE ITEMS IN THE COMPUTATION AND THERE WAS NO INTENTION TO EVADE TAX AS THERE WAS NO BENEFIT TO THE ASSESSEE AND THE MISTAKE WAS A BONAFIDE ONE. FURTHER ALL THE DETAILS WERE THERE IN THE AUDITED A CCOUNTS AND THE MISTAKE WAS ONLY IN THE COMPUTATION STATEMENT. 9.2 WE FIND RECENTLY THE HONBLE SUPREME COURT IN T HE CASE OF PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT VIDE CIVIL APP EAL NO. 6924/2012 ORDER DATED 25-09-2012 HAS OBSERVED AS UNDER : 17. HAVING HEARD LEARNED COUNSEL FOR THE PARTIES, WE ARE OF THE VIEW THAT THE FACTS OF THE CASE ARE RATHER PECULIAR AND SOMEWHAT UNIQUE. THE ASSESS EE IS UNDOUBTEDLY A REPUTED FIRM AND HAS GREAT EXPERTISE AVAILABLE WITH IT. NOTWITHSTANDING THIS, IT IS POSSIBLE THAT EVEN THE ASSESSEE COULD MAKE A 'SILLY' MISTAKE AND INDEED THIS HAS BEEN ACK NOWLEDGED BOTH BY THE TRIBUNAL AS WELL AS BY THE HIGH COURT. 18. THE FACT THAT THE TAX AUDIT REPORT WAS FILED AL ONG WITH THE RETURN AND THAT IT UNEQUIVOCALLY STATED THAT THE PROVISION FOR PAYMENT WAS NOT ALLOW ABLE UNDER SECTION 40A(7) OF THE ACT INDICATES THAT THE ASSESSEE MADE A COMPUTATION ERROR IN ITS R ETURN 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 TH E ASSESSING OFFICER SEEMS TO HAVE MADE A MISTAKE IN OVERLOOKING THE CONTENTS OF THE TAX AUDI T REPORT. 8 19. THE CONTENTS OF THE TAX AUDIT REPORT SUGGEST TH AT THERE IS NO QUESTION OF THE ASSESSEE CONCEALING ITS INCOME. THERE IS ALSO NO QUESTION OF THE ASSESSEE FURNISHING ANY INACCURATE PARTICULARS. IT APPEARS TO US THAT ALL THAT HAS HAP PENED IN THE PRESENT CASE IS THAT THROUGH A BONA FIDE AND INADVERTENT ERROR, THE ASSESSEE WHILE SUBM ITTING ITS RETURN, FAILED TO ADD THE PROVISION FOR GRATUITY TO ITS TOTAL INCOME. THIS CAN ONLY BE DESC RIBED 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 C ANNOT BE DOUBTED, BUT THE ABSENCE OF DUE CARE, IN A CASE SUCH AS THE PRESENT, DOES NOT MEAN THAT T HE ASSESSEE IS GUILTY OF EITHER FURNISHING INACCURATE PARTICULARS OR ATTEMPTING TO CONCEAL ITS INCOME. 20. WE ARE OF THE OPINION, GIVEN THE PECULIAR FACTS OF THIS CASE, THAT THE IMPOSITION OF PENALTY ON THE ASSESSEE IS NOT JUSTIFIED. WE ARE SATISFIED THA T THE ASSESSEE HAD COMMITTED AN INADVERTENT AND BONA FIDE ERROR AND HAD NOT INTENDED TO OR ATTEMPTE D TO EITHER CONCEAL ITS INCOME OR FURNISH INACCURATE PARTICULARS. 21. UNDER THESE CIRCUMSTANCES, THE APPEAL IS ALLOWE D AND THE ORDER PASSED BY THE CALCUTTA HIGH COURT IS SET ASIDE. 10. SINCE IN THE INSTANT CASE ALTHOUGH THERE WERE T WO COMPUTATION STATEMENTS WE FIND THE ASSESSEE HAD FILED THE RETURN ON THE BASIS OF THE INCORRECT COMPUTATION BUT IN THE SUBSEQUENT YEAR HAS CLAIMED THE BROUGHT FORW ARD LOSS ON THE BASIS OF THE CORRECT COMPUTATION AND THEREBY HAS NOT CLAIMED ANY EXTRA BENEFIT IN THE SUBSEQUENT YEAR. THEREFORE, WE ARE OF THE CONSIDERE D OPINION THAT THE MISTAKE COMMITTED BY THE ASSESSEE IN FILING THE RETURN ON T HE BASIS OF THE INCORRECT COMPUTATION STATEMENT IS A BONAFIDE MISTAKE AND THE REFORE NO PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT UNDER THE PECULIAR FACTS AND THE CIRCUMSTANCES OF THE CASE IS CALLED FOR. IN THIS VIEW OF THE MATTER, WE SET-ASI DE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO CANCEL THE PENALTY. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 5 TH DAY OF NOVEMBER 2012 SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED: THE 5 TH NOVEMBER 2012 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-I, AURANGABAD 4. THE D.R, B PUNE BENCH 5. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE