EMERALD REALTORS P. LTD, MUMBAI V. ACIT CC-37, MUMBAI

ITA 5964/MUM/2009

• Counselvise Citation: 596419914 RSA 2009
• Duration Of Justice: 2 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 11-01-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 09-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: AJAY R SINGH
• Keywords: Corroborative evidences
• Section: 143(3)

Judgement Text

EMERALD REALTORS P LTD IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI MUMBAI MUMBAI MUMBAI E EE E BENCH BENCH BENCH BENCH MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI R K PANDA R K PANDA R K PANDA R K PANDA , ,, , AM AM AM AM & SHRI & SHRI & SHRI & SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM ITA NO. ITA NO. ITA NO. ITA NO. 5964/M UM/2009 5964/M UM/2009 5964/M UM/2009 5964/M UM/2009 (ASST YEAR (ASST YEAR (ASST YEAR (ASST YEAR 2000 2000 2000 2000- -- -01 0101 01 ) )) ) EMERALD REALTORS P LTD 9 TH FLOOR, DHEERAJ ARMA ANANT KANEKAR MARG STATION ROAD, BANDRA (E) MUMBAI VS THE ASST COMMR OF INCOME TAX CEN.CR 37, MUMBAI (APPELLANT (APPELLANT (APPELLANT (APPELLANT ) )) ) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) PAN NO. PAN NO. PAN NO. PAN NO. AAACE4757B AAACE4757B AAACE4757B AAACE4757B ASSESSEE BY SH AJAY R SINGH REVENUE BY SH D S SUNDER SINGH DT.OF HEARING 11 TH JAN 2012 DT OF PRONOUNCEMENT 20 TH , JAN 2012 ORDER ORDER ORDER ORDER PER PER PER PER VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO, , , , JM JMJM JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 17.7.2009 ARISING FROM THE PENALTY ORDER PASSED U/S 271(1)( C ) OF THE I T ACT FOR THE ASSESSMENT YEAR 2000-01. 2 THE ASSESSEE HAS FILED THE REVISED GROUNDS OF APP EAL AS UNDER: I) THE LD CIT(A) ERRED IN UPHOLDING LEVY OF PENALT Y U/S 271(1 )( C) OF THE ACT OF RS. 6,49,354/- IN REGARDS TO TRAVELLI NG EXPENSES AND BUSINESS PROMOTION EXPENSES WITHOUT APPRECIATING TH E ALL THE DETAILS AND PARTICULAR WERE FILED BEFORE THE ASSESS ING OFFICER, THEREFORE, THERE WAS NO CONCEALMENT OR FURNISHING O F INACCURATE PARTICULARS OF INCOME, THE PENALTY MAY BE DELETED. II) THE PENALTY ORDER HAS BEEN PASSED BY THE ASSES SING OFFICER ON 30.1.2009 MORE SO WHEN THE CIT(A) ORDER IN QUANT UM PROCEEDING WAS PASSED ON 17.12.2004, THEREFORE, THE PENALTY OR DER IS PASSED MUCH BEYOND THE TIME LIMIT PRESCRIBED UNDER THE PRO VISION OF SEC. 275(1) OF THE ACT. EMERALD REALTORS P LTD 2 3 AT THE TIME OF HEARING, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE DOES NOT PRESS GROUND NO.2 REGARDING LIMIT ATION OF PENALTY ORDER AND THE SAME MAY BE DISMISSED. THE LD DR HAS NO OBJECT ION, IF THE GROUND N O.2 OF THE REVISED GROUNDS OF APPEAL IS DISMISSED AS NOT P RESSED. 4 ACCORDINGLY, WE DISMISS THE GROUND NO2 BEING NOT PRESSED. 5 GROUND NO.1 IS REGARDING DISALLOWING OF TRAVELLIN G EXPENSES AND BUSINESS PROMOTION EXPENSE. 6 THE ASSESSEE FILED ITS RETURN OF INCOME OF RS.13, 08,780/- ON 29.11.2000. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT DETERMINING TOTAL INCOME OF RS. 29,95,414/-. WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICER MADE ADDITION OF RS. 11,80,288/- ON ACCOUNT OF TRAVELLIN G EXPENSES AND RS.7,83,116/- ON ACCOUNT OF BUSINESS PROMOTION EXPENSES. THE MAT TER WAS CARRIED TO THE TRIBUNAL AND THE TRIBUNAL VIDE ITS ORDER DATED 11.6 .2008 IN ITA NO. 2096/MUM/05 CONFIRMED THE DISALLOWANCE OF RS. 10,53,518/- OUT O F WHICH TRAVELLING EXPENSES AND RS. 6,33,116/- OUT OF BUSINESS PROMOTION EXPEN SES AS UNDER: 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT THE EXPENDITURE DISALLOWED REPRESENTS THE EXPENSES DEBI TED BY THE ASSESSEE COMPANY IN ITS ACCOUNT BOOKS WITH REGARD T O THE TOURS UNDERTAKEN BY THE DIRECTORS OF THE GROUP COMPANIES OF THE ASSESSEE AND IT IS AN ADMITTED FACT THAT THE DISALLOWED EXPE NSES WERE NOT INCURRED BY THE ASSESSEE COMPANY FOR ITS BUSINESS P URPOSES. IN ACCORDANCE WITH THE SCHEME OF THE INCOME TAX ACT, T HE EXPENSES INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS PU RPOSE OF THE ASSESSEE ARE ALLOWABLE IN THE HANDS OF THE ASSESSEE . THE ASSESSEE COULD NOT EXPLAIN ANY VALID REASON FOR DEBITING THE EXPENSES INCURRED BY THE DIRECTORS OF THE OTHER COMPANIES FO R THE BUSINESS PURPOSE OF THE GROUP COMPANIES AND WHICH DO NOT REL ATE TO THE BUSINESS OF THE ASSESSEE COMPANY. THE ASSESSEE COMP ANY IS SEPARATELY ASSESSED TO TAX FROM THE GROUP COMPANIES OF THE GROUP. IN THESE FACTS OF THE CASE, WE HOLD THAT THERE IS N O MISTAKE IN THE ORDER OF THE CIT(A) IN HOLDING THAT SINCE THE ASSES SEE HAS NOT BEEN ABLE TO PROVE THAT THESE EXPENSES HAVE BEEN INCURRE D WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS OF THE ASSE SSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION AND THEREFORE, THE DISALLOWANCE MADE BY THE ASSESSING OFFICER CAN NOT BE INTERFERED EMERALD REALTORS P LTD 3 WITH. ACCORDINGLY, ORDER OF THE CIT(A) IS CONFIRMED AND THE GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 6.1 IN THE MEANTIME, THE ASSESSING OFFICER INITIATE D PENALTY PROCEEDINGS U/S 271(1)( C) AND LEVIED A PENALTY OF RS. 6,49,354/- BEING 100% OF THE TAX SOUGHT TO BE EVADED ON SUCH DISALLOWANCE. 6.2 THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFOR E THE CIT(A) BUT COULD NOT SUCCEED. 7 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITTE D THAT THE ENTIRE DETAILS AND THE RELEVANT MATERIAL HAVE BEEN FILED DURING TH E COURSE OF ASSESSMENT PROCEEDINGS AND THERE WAS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME IN THE RETURN OF INCOME OF TH E ASSESSEE. HE HAS REFERRED THE ORDER OF THE TRIBUNAL WHEREBY THE DISALLOWANCE HAS BEEN CONFIRMED AND SUBMITTED THAT THE DISALLOWANCE HAS BEEN CONFIRMED BY THE TRIBUNAL ON THE GROUND THAT THE EXPENDITURE WAS INCURRED ON ACCOUNT OF TRAVELLING EXPENSES OF THE DIRECTORS WHO ARE COMMON IN ASSESSEES GROUP CO MPANIES AND THEREFORE, THE TRIBUNAL HAS HELD THAT THE SAID EXPENDITURE HAS N OT BEEN INCURRED FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE. HE HAS FURTHE R SUBMITTED THAT THE GENUINENESS OF THE EXPENDITURE HAS NOT BEEN DOUBTED . THE ASSESSEE HAS TENDERED BONAFIDE EXPLANATION FOR CLAIM OF EXPENSES , WHICH WERE INCURRED FOR THE PURPOSE OF THE BUSINESS OF THE ASSESSEE, THOUGH IN RELATION TO THE GROUP COMPANIES. 7.1 THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT ME RE DISALLOWANCE OF EXPENDITURE DOES NOT WARRANT LEVY OF PENALTY. HE HA S RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF COMMISSION ER OF INCOME-TAX V. RELIANCE PETROPRODUCTS PVT. LTD. REPORTED IN 322 IT R 158 AS WELL AS THE DECISION EMERALD REALTORS P LTD 4 OF THE TRIBUNAL IN THE CASE OF HINDALCO INDUSTRIES LTD VS ACIT REPORTED IN 41 SOT 254(MUM ). 7.2 ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THIS IS A CASE OF DIVERSION OF EXPENDITURE NOT RELATED TO THE ASSESSEE; THEREFO RE, IT IS A CLEAR CASE OF FURNISHING INACCURATE PARTICULARS OF INCOME WHEREBY THE ASSESSEE HAS AVOIDED THE TAX. THE LD DR HAS FURTHER SUBMITTED THAT THE CLAIM WAS FOUND AS WRONG ON FACTS BECAUSE THE EXPENDITURE WAS NOT INCURRED FOR THE PURPOSE OF THE BUSINESS OF THE ASSESSEE BUT FOR THE BUSINESS PURPOSE OF THE SISTER CONCERN. HE HAS FURTHER POINTED OUT THAT THE ASSESSING OFFICER HAS GIVEN A FINDING OF FACT IN PARA 3 & 3.2 OF THE PENALTY ORDER THAT THE EXPENDITURE BOO KED UNDER THESE HEAD WERE PAID THROUGH CREDIT CARD OF THE PERSON, WHO ARE NOT DIRECTORS OF THE ASSESSEE COMPANY. THEREFORE, IT IS A CASE OF MISREPRESENTATI ON BY CLAIMING OF EXPENDITURE, WHICH IS NOT INCURRED FOR THE PURPOSE OF THE BUSINE SS OF THE ASSESSEE, THE PENALTY LEVIED BY THE ASSESSING OFFICER IS JUSTIFIE D. 8 WE HAVE CONSIDERED THE RIVAL CONTENTION AS WELL A S THE RELEVANT MATERIAL ON RECORD. THIS IS NOT A CASE WHERE THE ASSESSEE H AS MADE A CLAIM, WHICH WAS DISALLOWED AS HIT BY THE PROVISIONS OF THE ACT BUT THE CLAIM OF THE EXPENDITURE WAS FOUND NOT AT ALL RELATED TO THE BUSINESS OF THE ASSESSEE. EVEN AS PER THE EXPLANATION, IT WAS FOUND THAT THE EXPENDITURE WAS INCURRED FOR THE PURPOSE OF THE OTHER GROUP CONCERNED. THEREFORE, THE CLAIM O F THE ASSESSEE WAS FOUND FACTUALLY INCORRECT. FURTHER, THE ASSESSING OFFICER IN PARAS 3 & 3.2 OF THE PENALTY ORDER HAS RECORDED THE FACTS AS UNDER: 3 ON EXAMINING THE DETAILS, IT WAS FOUND THAT THE TRAVEL EXPENSES RELATED TO VARIOUS EXPENSES WHO ARE NEITHE R THE EMPLOYEES NOR DIRECTORS OF THE CONCERN. TRAVEL HAS BEEN UNDERTAKEN BY WIFE AND CHILDREN OF CONSULTANT OR OF DIRECTORS OF SISTERS CONCERNS, CERTAIN VISA CHARGES HAD ALSO BEEN DEBITED WHEREAS THE COMPANY DOES NOT HAVE ANY OVERSEAS VENTURES. FURTHER, THE E NTIRE BUSINESS OF THE COMPANY IS CARRIED OUT IN MUMBAI WHEREAS MAN Y TRIPS WERE MADE TO DELHI, BANGALORE, CHENNAI, COCHIN, ETC. PEN ALTY EMERALD REALTORS P LTD 5 PROCEEDINGS U/S 271(1)(C) WAS INITIATED SIMULTANEOU SLY FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE ASSESSEE VIDE ITS LETTER DATED 3.3.2003 SUBMITT ED THAT MOST OF THE TRIPS HAVE BEEN UNDERTAKEN ON BEHALF OF THE GRO UP COMPANIES AND GAVE MANY MAJOR REASONS FOR THE SAME. 3.2 FURTHER, THE ASSESSEE HAS DEBITED A SUM OF RS.7 ,83,116/- TO ITS P & L A/C UNDER THE HEAD BUSINESS PROMOTION EXPENSES. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF THE SAME ALONG WITH THE VOUCHERS AND ESTABLISH THE BUSINESS PURPOSE OF THES E EXPENSES. THE ASSESSEE FILED THE DETAILS VIDE LETTER DATED 3. 3.2003 AND SUBMITTED THAT MOST OF THE EXPENSES ARE IN CONNECTI ON WITH TRAVELLING SPECIFIED ABOVE SUCH AS HOTEL BILLS FOR FOOD, ACCOMMODATION, MEETING WITH VARIOUS PEOPLES, ETC. P AYMENTS ARE MADE THROUGH CREDIT CARDS OF THE DIRECTORS AND WE A RE ALSO PRODUCING REQUISITE SUPPORTING EVIDENCES FOR YOUR V ERIFICATION, ON VERIFICATION, IT WAS FOUND THAT MOST OF THE EXPENSE S BOOKED UNDER THIS HEAD HAVE BEEN PAID THROUGH CREDIT CARDS AND T HE ASSESSEE WAS ASKED TO EXPLAIN IN WHOSE NAMES THE CREDIT CARD S WERE HELD. FURTHER, ALL CREDIT CARDS PAYMENTS MADE RELATE TO E XPENSES INCURRED VIA CREDIT CARDS OF SHRI DHEERAJ WADHWAN, SARANG WA DHWAN AND RAKESH KUMAR WADHWAN. NONE OF THE PERSONS ARE DIREC TORS IN THE ASSESSEE COMPANY. FURTHER, MOST OF THE EXPENSES PER TAIN TO HOTEL AND ENTERTAINMENT AND ALSO SOME AIR TICKETS EXPENSE S HAVE BEEN BOOKED UNDER THIS HEAD. THE PURPOSE OF THE SAID EXP ENSES HAS NOT BEEN PROPERLY ESTABLISHED. 8.1 THE ASSESSEE HAS NOT CONTROVERTED THE FACTS OF PAYMENTS OF THE EXPENSES BY CREDIT CARD OF THE PERSONS, WHO ARE NOT THE DIR ECTOR OF THE ASSESSEE COMPANY. THEREFORE, IT IS A CASE OF DIVERSION/SHIFTING OF EX PENSES OF SISTER CONCERN TO THE ASSESSEE WITH A VIEW TO REDUCE THE TAX LIABILITY. THE ACT OF THE ASSESSEE IN CLAIMING THE SAID EXPENDITURE SHOWS DIS-HONEST MOTI VE AND THEREFORE, ATTRACTS THE PENAL PROVISIONS OF SEC. 271(1)( C) OF THE I T ACT. 7 FROM THE FACTS OF THE CASE, IT IS MANIFEST THAT T HE ASSESSEE HAS MADE A PATENTLY INCORRECT/WRONG AND UNTENABLE CLAIM. THER EFORE, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, IN OUR HUMBLE VIEW, THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF COMMISSIONER O F INCOME-TAX V. RELIANCE PETROPRODUCTS PVT. LTD. REPORTED IN 322 ITR 158 AS WELL AS THE ORDER OF THE EMERALD REALTORS P LTD 6 TRIBUNAL RELIED UPON BY THE ASSESSEE ARE NOT APPLIC ABLE AS HAS BEEN HELD BY THE HONBLE DELHI HIGH COURT IN THE CASE OF COMMISSIONE R OF INCOME-TAX V. ZOOM COMMUNICATION P. LTD., REPORTED IN 327 ITR 510 AS U NDER: IN THE CASE OF RELIANCE PETROPRODUCTS P. LTD. [201 0] 322 ITR 158 (SC), THE ADDITION MADE BY THE ASSESSING OFFICER IN RESPE CT OF THE INTEREST CLAIMED AS A DEDUCTION UNDER SECTION 36(1)(III) OF THE ACT WAS DELETED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) THOUGH IT WAS LATER RESTORED, BY THE TRIBUNAL, TO THE ASSESSING OFFICER. THE APPE AL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL WAS ADM ITTED BY THE HIGH COURT. IT WAS, IN THESE CIRCUMSTANCES, THAT THE TR IBUNAL CAME TO THE CONCLUSION THAT THE ASSESSEE HAD NEITHER CONCEALED THE INCOME NOR FILED INACCURATE PARTICULARS THEREOF. IN RECORDING THIS FINDING, THE TRIBUNAL FELT THAT IF TWO VIEWS OF THE CLAIM OF THE ASSESSEE WER E POSSIBLE, THE EXPLANATION OFFERED BY IT COULD NOT BE SAID TO BE FALSE. THIS, HOWEVER, IS NOT THE FACTUAL POSITION IN THE CASE BEFORE US. TH E FACTS OF THE PRESENT CASE THUS ARE CLEARLY DISTINGUISHABLE. IT IS TRUE THAT MERE SUBMITTING A CLAIM WHICH IS IN CORRECT IN LAW WOULD NOT AMOUNT TO GIVING INACCURATE PARTICULARS OF THE INCO ME OF THE ASSESSEE, BUT IT CANNOT BE DISPUTED THAT THE CLAIM MADE BY TH E ASSESSEE NEEDS TO BE BONA FIDE. IF THE CLAIM BESIDES BEING INCORRECT IN LAW IS MALA FIDE, EXPLANATION 1 TO SECTION 271(1)(C) WOULD COME INTO PLAY AND WORK TO THE DISADVANTAGE OF THE ASSESSEE. THE COURT CANNOT OVERLOOK THE FACT THAT ONLY A SMAL L PERCENTAGE OF THE INCOME-TAX RETURNS ARE PICKED UP FOR SCRUTINY. IF T HE ASSESSEE MAKES A CLAIM WHICH IS NOT ONLY INCORRECT IN LAW BUT IS AL SO WHOLLY WITHOUT ANY BASIS AND THE EXPLANATION FURNISHED BY HIM FOR MAK ING SUCH A CLAIM IS NOT FOUND TO BE BONA FIDE, IT WOULD BE DIFFICULT T O SAY THAT HE WOULD STILL NOT BE LIABLE TO PENALTY UNDER SECTION 271(1)(C) O F THE ACT. IF WE TAKE THE VIEW THAT A CLAIM WHICH IS WHOLLY UNTENABLE IN LAW AND HAS ABSOLUTELY NO FOUNDATION ON WHICH IT COULD BE MADE, THE ASSESSEE WOULD NOT BE LIABLE TO IMPOSITION OF PENALTY, EVEN IF HE WAS NOT ACTIN G BONA FIDE WHILE MAKING A CLAIM OF THIS NATURE, THAT WOULD GIVE A L ICENCE TO UNSCRUPULOUS ASSESSEES TO MAKE WHOLLY UNTENABLE AND UNSUSTAINAB LE CLAIMS WITHOUT THERE BEING ANY BASIS FOR MAKING THEM, IN THE HOPE THAT THEIR RETURN WOULD NOT BE PICKED UP FOR SCRUTINY AND THEY WOULD BE ASSESSED ON THE BASIS OF SELF-ASSESSMENT UNDER SECTION 143(1) OF T HE ACT AND EVEN IF THEIR CASE IS SELECTED FOR SCRUTINY, THEY CAN GET AWAY MERELY BY PAYING THE TAX, WHICH IN ANY CASE, WAS PAYABLE BY THEM. T HE CONSEQUENCE WOULD BE THAT THE PERSONS WHO MAKE CLAIMS OF THIS NATURE, ACTUATED BY A MALA FIDE INTENTION TO EVADE TAX OTHERWISE PAYABLE BY THEM WOULD GET AWAY WITHOUT PAYING THE TAX LEGALLY PAYABLE BY THEM , IF THEIR CASES ARE NOT PICKED UP FOR SCRUTINY. THIS WOULD TAKE AWAY TH E DETERRENT EFFECT, WHICH THESE PENALTY PROVISIONS IN THE ACT HAVE. EMERALD REALTORS P LTD 7 WE FIND THAT THE ASSESSEE BEFORE US DID NOT EXPLAIN EITHER TO THE INCOME TAX AUTHORITIES OR TO THE INCOME-TAX APPELLATE TRIB UNAL AS TO IN WHAT CIRCUMSTANCES AND ON ACCOUNT OF WHOSE MISTAKE, THE AMOUNTS CLAIMED AS DEDUCTIONS IN THIS CASE WERE NOT ADDED, WHILE COMPU TING THE INCOME OF THE ASSESSEE-COMPANY. WE CANNOT LOSE SIGHT OF THE F ACT THAT THE ASSESSEE IS A COMPANY WHICH MUST BE HAVING PROFESSI ONAL ASSISTANCE IN COMPUTATION OF ITS INCOME, AND ITS ACCOUNTS ARE COM PULSORILY SUBJECTED TO AUDIT. IN THE ABSENCE OF ANY DETAILS FROM THE AS SESSEE, WE FAIL TO APPRECIATE HOW SUCH DEDUCTIONS COULD HAVE BEEN LEFT OUT WHILE COMPUTING THE INCOME OF THE ASSESSEE-COMPANY AND HO W IT COULD ALSO HAVE ESCAPED THE ATTENTION OF THE AUDITORS OF THE COMPANY. THE EXPLANATION OFFERED BY THE ASSESSEE-COMPANY WAS NOT ACCEPTED EITHER BY THE ASSESSING OFFICER OR BY THE COMMISSIO NER OF INCOME-TAX (APPEALS). THE VIEW OF THE INCOME-TAX APPELLATE TRI BUNAL REGARDING ADMISSIBILITY OF THE DEDUCTION ON ACCOUNT OF WRITTE N OFF OF CERTAIN ASSETS, UNDER SECTION 32(1)(III) OF THE ACT IS WHOLLY ERRON EOUS. THE TRIBUNAL HAS NOT RECORDED A FINDING THAT THE EXPLANATION FURNISH ED BY THE ASSESSEE IN RESPECT OF THE DEDUCTION DUE TO CERTAIN ASSETS BEIN G WRITTEN OFF WAS A BONA FIDE EXPLANATION. THE TRIBUNAL HAS NOWHERE HEL D THAT IT WAS DUE TO OVERSIGHT THAT THE AMOUNT OF THIS DEDUCTION COULD N OT BE ADDED WHILE COMPUTING THE INCOME OF THE ASSESSEE-COMPANY. 8 IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND A NY ERROR OR ILLEGALITY IN THE ORDER OF THE CIT(A) IN CONFIRMING THE LEVY OF PENAL TY U/S 271(1)( C). 9 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S DISMISSED. ORDER PRONOUNCED ON THE 20 TH ,DAY OF JAN 2012. SD/ SD/- ( (( ( R K PANDA R K PANDA R K PANDA R K PANDA ) )) ) ACCOUNTANT MEMBER ( (( ( VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO ) )) ) JUDICIAL MEMBER PLACE: MUMBAI : DATED:20 TH , JAN 2012 RAJ* RAJ* RAJ* RAJ* EMERALD REALTORS P LTD 8 COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI