Add.lCIT, Special Range-5, New Delhi V. JC Decaux Advertising (India) Pvt. Ltd., New Delhi

ITA 5520/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9399 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 30-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P RAKASH DUBEY SENIOR
• Assessee Lawyers: K M GUPTA MS SALONI SHITAL
• Keywords: Difference of opinion; Set aside
• Section: 271(1)(c); 115JB; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.5520/DEL./2017 (ASSESSMENT YEAR : 2009-10) DCIT, SPECIAL RANGE 5, VS. M/S. J.C. DECAUX ADVERT ISING NEW DELHI. INDIA (P) LIMITED, 231, OKHLA INDUSTRIAL ESTATE, PHASE III, NEW DELHI-110 020. (PAN : AABCJ6312Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K.M. GUPTA, ADVOCATE MS. SALONI SHITAL, ADVOCATE REVENUE BY : SHRI PRAKASH DUBEY, SENIOR DR DATE OF HEARING : 15.07.2021 DATE OF ORDER : 29.07.2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, DCIT, SPECIAL RANGE 5, NEW DELHI (HEREINAFTER REFERRED TO AS THE REVENUE) BY FILIN G THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 20.06.2017 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)- 36, NEW DELHI AFFIRMING THE PENALTY ORDER DATED 31.03.2016 PASSED UNDER ITA NO.5520/DEL./2017 2 SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT), QUA THE ASSESSMENT YEAR 2009-10 ON THE GROUNDS INTE R ALIA THAT :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY O F RS.2,22,52,985/- IMPOSED U/S. 271 (1)(C) OF THE INC OME TAX ACT, 1 961 . 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY I MPOSED UNDER SECTION 271 (1)(C) BY NOT APPRECIATING THE FACTS TH AT THE CLAIM OF THE ASSESSEE IN RELATION TO EXPENDITURE INCURRED ON CONSTRUCTION OF BUS QUEUE SHELTER IS OF CAPITAL NATURE. THE ASSE SSEE TOO DID NOT PRESS THE GROUND BEFORE THE HON'BLE ITAT WHICH TANTAMOUNT TO FURNISHING OF INACCURATE PARTICULARS OF INCOME U NDER SECTION 271 (1)(C) OF THE INCOME TAX ACT, 1961 . 3. THAT THE ORDER OF THE LD.CIT(A) IS ERRONEOUS AN D IS NOT TENABLE ON FACTS AND IN LAW. 4. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDIC E TO EACH OTHER. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF ASSESSMEN T FRAMED UNDER SECTION 143 (3) OF THE ACT AT AN INCOME OF RS.63,50 ,849/- AFTER MAKING DISALLOWANCE U/S 115JB OF THE ACT TO THE TUN E OF RS8,72,92,281/- ON ACCOUNT OF DISALLOWANCE ON ACCOU NT OF EXPENSES HELD TO BE CAPITAL IN NATURE, ASSESSING OF FICER (AO) INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME. DECLI NING THE CONTENTIONS RAISED BY THE ASSESSEE THAT EXPENDITURE INCURRED ON CONSTRUCTION OF BUS QUEUE SHELTERS (BQS) IS BONAFID E AND FULL & COMPLETE DISCLOSURE OF FACTS HAVE BEEN MADE BY THE ASSESSEE IN THE ITA NO.5520/DEL./2017 3 RETURN OF INCOME, AO LEVIED THE PENALTY TO THE TUNE OF RS.2,22,52,985/- @ 100% OF THE TAX SOUGHT TO BE EVA DED FOR FURNISHING INACCURATE PARTICULARS OF INCOME U/S 271 (1)((C) OF THE ACT. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS BY FOLLOWING HIS EARLIER ORDER DELETED THE PENALTY BY ALLOWING THE APPEAL. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING TH E PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. LD. DR FOR THE REVENUE CHALLENGING THE IMPUGNED ORDER CONTENDED INTER ALIA THAT WHEN THE ASSESSEE HAS ACC EPTED THE QUANTUM BY NOT FILING APPEAL, IT AMOUNTS TO FURNISH ING OF INACCURATE PARTICULARS OF INCOME U/S 271(1)(C) OF THE ACT AND THAT EXPENDITURE INCURRED BY THE ASSESSEE ON THE CONSTRUCTION OF BQS IS CAPITAL IN NATURE. HOWEVER, ON THE OTHER HAND, LD. AR FOR THE ASSESSEE RELIED UPON THE ORDER PASSED BY THE LD. CIT (A) AND FURTHE R CONTENDED THAT EARLIER ORDER PASSED BY THE LD. CIT (A) IN AYS 2007 -08 & 2008-09 ITA NO.5520/DEL./2017 4 ON IDENTICAL FACTS HAVE BEEN CONFIRMED BY THE TRIBU NAL VIDE ORDER DATED 14.01.2020 (SUPRA). 6. IN THE BACKDROP OF THE AFORESAID UNDISPUTED FACT S & CIRCUMSTANCES OF THE CASE, ORDER PASSED BY THE LOWE R REVENUE AUTHORITIES AND ARGUMENTS ADDRESSED BY THE LD. AUTH ORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, THE S OLE QUESTION ARISES FOR DETERMINATION IN THIS CASE IS:- AS TO WHETHER THE ASSESSEE HAS CONCEALED PARTICULA RS OF INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF SUCH INC OME DURING ASSESSMENT PROCEEDINGS? 7. UNDISPUTEDLY, PENALTY PROCEEDINGS HAVE BEEN INIT IATED BY THE AO ON THE BASIS OF DISALLOWANCE MADE TO THE TUNE OF RS.8,72,92,281/- ON ACCOUNT OF DISALLOWANCE ON ACCO UNT OF EXPENSES HELD TO BE CAPITAL IN NATURE. IT IS ALSO NOT IN DISPUTE THAT IN EARLIER YEARS, IDENTICAL ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE LD. CIT (A) WHO HAS FOLLOWED HIS OWN ORDER, WHICH HAVE BEEN FURTHER CONFIRMED BY THE COORDINATE BENCH OF THE TRIBUNAL VIDE ORDER DATED 14.01.2020 IN ITA NOS.5275/DEL/2016 & 5276/DEL/2016 FOR ASSESSMENT YE ARS 2007-08 & 2008-09 . 8. WE HAVE PERUSED THE ORDER DATED 14.01.2020 (SUPRA) PASSED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSME NT YEARS 2007-08 & 2008-09 DEALING WITH IDENTICAL ISSUE AS T O WHETHER ITA NO.5520/DEL./2017 5 EXPENDITURE INCURRED BY THE ASSESSEE ON CONSTRUCTIO N OF BQS FOR AND ON BEHALF OF NEW DELHI MUNICIPAL CORPORATION (N DMC) AND MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY (M MRDA) TO THE TUNE OF RS.8,72,92,281/- ARE CAPITAL IN NATURE OR REVENUE IN NATURE? ON THE IDENTICAL FACTS, PENALTY WAS INITIATED AND LEVIED IN EARLIER YEARS BUT WAS DELETED BY LD. CIT (A) AND HI S ORDER HAS BEEN CONFIRMED BY THE COORDINATE BENCH OF THE TRIBUNAL O N THE GROUND THAT WHEN THE ASSESSEE HAS BROUGHT ON RECORD ALL TH E TRUE AND MATERIAL FACTS IN THE RETURN OF INCOME, IT IS MEREL Y A DIFFERENCE OF OPINION IF THESE EXPENSES ARE TO BE TREATED AS CAPI TAL OR REVENUE IN NATURE AND IS NOT A CASE OF FURNISHING OF INACCURAT E PARTICULARS OF INCOME. 9. HONBLE APEX COURT IN CASE OF CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD. 322 ITR 158 (S.C.) . (SUPRA) HELD THAT MERELY MAKING A CLAIM WHICH IS NOT SUSTAINABLE IN LAW BY I TSELF WOULD NOT AMOUNT TO FURNISHING OF INACCURATE PARTICULARS BY R ETURNING FOLLOWING FINDINGS :- A GLANCE AT THE PROVISIONS OF SECTION 271(L)(C) OF THE I.T. ACT, 1961 SUGGESTS THAT IN ORDER TO BE COVERED BY IT, THERE H AS TO BE CONCEALMENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. S ECONDLY, THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICULARS OF HIS I NCOME. THE MEANING OF THE WORD PARTICULARS USED IN SECTION 2 71(L)(C) WOULD EMBRACE THE DETAIL OF THE CLAIM MADE. WHERE NO INFO RMATION GIVEN IN THE RETURN IS FOUND TO BE INCORRECT OR INACCURATE, THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. I N ORDER TO EXPOSE THE ASSESSEE TO PENALTY, UNLESS THE CASE IS STRICTLY CO VERED BY THE PROVISION, THE PENALTY PROVISION CANNOT BE INVOKED. BY NO STRE TCH OF IMAGINATION CAN MAKING AN INCORRECT CLAIM TANTAMOUNT TO FURNISH ING INACCURATE ITA NO.5520/DEL./2017 6 PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHIN G WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE, BECAUSE THAT IS THE ONLY DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PARTICULARS OF H IS INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACCURATE, THE LI ABILITY WOULD ARISE. TO ATTRACT PENALTY, THE DETAILS SUPPLIED IN THE RET URN MUST NOT BE ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDING TO TH E TRUTH OR ERRONEOUS. WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FA LSE THERE IS NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271( L)(C). A MERE MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITS ELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INC OME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FU RNISHING INACCURATE PARTICULARS. 10. LD. CIT (A) HAS THOROUGHLY THRASHED THE FACTS A T HAND IN AYS 2007-08 & 2008-09 AND DURING THE YEAR UNDER ASS ESSMENT IN THE LIGHT OF THE LAW LAID DOWN BY HONBLE APEX COUR T AND HONBLE JURISDICTIONAL HIGH COURT. WE ARE OF THE CONSIDERE D VIEW THAT BY CLAIMING EXPENDITURE INCURRED BY THE ASSESSEE ON CO NSTRUCTION OF BQS FOR AND ON BEHALF OF NEW DELHI MUNICIPAL CORPOR ATION (NDMC) AND MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY (MMRDA) TO THE TUNE OF RS.8,72,92,281/- A S CAPITAL IN NATURE DOES NOT AMOUNT TO FURNISHING OF INACCURATE PARTICULARS OF INCOME. SO, LD. CIT (A) HAS RIGHTLY DELETED THE PE NALTY AND FINDING NO ILLEGALITY OR PERVERSITY IN THE IMPUGNED ORDER, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 29 TH DAY OF JULY, 2021. SD/- SD/- (ANIL CHATURVEDI) (KULDIP SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 29 TH DAY OF JULY, 2021/TS ITA NO.5520/DEL./2017 7 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-36, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.