Asstt.Commissioner of Income Tax-4, Kanpur V. M/s. Tisha Minerals (P) Ltd., Kanpur

ITA 607/LKW/2012

• Counselvise Citation: 60723714 RSA 2012
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 21-05-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 17-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: P K KAPOOR

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.607/LKW/2012 ASSESSMENT YEAR:2008 - 09 A.C.I.T. - 4, KANPUR. VS. M/S TISHA MINERALS (P) LTD., 123/356, FAZALGANJ, KANPUR. PAN:AACCT0800G (APPELLANT) (RESPONDENT) APPELLANT BY SHRI ALOK MITRA, D.R. RESPONDENT BY SHRI P. K. KAPOOR, C.A. DATE OF HEARING 22/05/2014 DATE OF PRONOUNCEMENT 1 3 /06/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - I, KANPUR DATED 03/09/2012 FOR ASSESSMENT YEAR 2008 - 2009. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - I, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.7,00,000/ - LEVIED U/S 271(1) (C) OF THE IT ACT 1961 WITHOUT APPRECIATING THAT THE A.O. HAD RIGHTLY INVOKED PROVISIONS OF SECTION 40(A)(IA) AND OF SECTION 271(1)(C) ON THE BASIS OF THE FACTS AVAILABLE. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - I, KANPUR HAS ERRED IN LAW AND ON FACTS IN CHOOSING TO PLACE RELIANCE ON AN ORDER OF THE ITAT WHICH IN TURN RELIED ON A JUDGMENT OF THE SUPREME COURT WITHOUT APPRECIATING THAT T HE ISSUE HAS TO BE DECIDED ON DIE 2 BASIS OF FACTS OF THE PRESENT CASE THAT ARE DISTINCT FROM THOSE OF THE CITED CASES. 3. THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) BEING ERRONEOUS IN LAW AND ON FACTS DESERVES TO BE VACATED AND THE ORDER OF ASSESSING OFFICER BE RESTORED. 4. THAT THE APPELLANT CRAVES LEAVE TO MODIFY ANY OF THE GROUNDS OF APPEAL OR RAKE ADDITIONAL GROUND DURING THE PENDENCY OF THIS APPEAL. 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE PENALTY ORDER. HE ALSO PLACED RELIANCE ON THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF MAK DATA PVT. LTD. VS. CIT AS REPORTED IN [2013] 358 ITR 593 (SC). 4. AS AGAINST THIS , LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THIS ISSUE WAS DECIDED BY LEARNED CIT(A) AS PER PARA 4 AND 4.1 OF HIS ORDER WHICH ARE REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: 4. DECISION IN THE CASE OF ACIT VS SEAWAYS SHIPPING YARD (2011) 041 (II) ITCL 0297 (HYD - TRIB) (SUPRA), IT WAS HELD BY THE HON'BLE ITAT, THAT THE ASSESSEE HAS FAILED TO DEDUCT TDS WHICH RESULTED IN DISALLOWANCE OF EXPENDITURE. IN OUR OPINION, THE MISTAKE COMMITTED BY THE ASSESSEE WAS COMPENSATED BY DISALLOWING THE EXPENDITURE. FURTHER, THE REVENUE CANNOT PENALISE THE ASSESSEE BY LEVYING PENALTY UNDER 3 SECTION 271(1) (C) OF THE ACT. IN ORDER TO LEVY PENALTY, UNDER SECTION 271(1)(C) OF THE ACT, THERE HAS TO BE CONCEALMENT OF PARTICULARS OF INCOME OF THE ASSESSEE OR THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICULARS OF ITS INCOME. PRESENT IS NOT THE CASE OF CONCEALMENT OF INCOME OR IT IS NOT THE CASE OF REVENUE THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. THE DEPARTMENT HAS NOT FOUND OUT THAT THE ASSESSEE HAS FURNISHED ANY FACTUAL INCORRECT INFORMATION AND THE ASSESSEE IS NOT GUILTY OF FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN OUR OPINION, THE CONDITIONS LAID DOWN I N SECTION 271(1)(C) OF THE ACT IS NOT COMPLIED WITH. BEING SO, LEVY OF PENALTY IS NOT JUSTIFIED MERELY BECAUSE THE ASSESSEE HAS CLAIMED CERTAIN EXPENDITUR E THAT EXPENDITURE IS NOT ELIGIBLE IN VIEW OF THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AND FOR THAT REASON, EXPENDITURE IS DISALLOWED. PENALTY CANNOT BE LEVIED FOR MERE MAKING OF A CLAIM OF THE EXPENDITURE WHICH IS NOT SUSTAINABLE AND DELETION OF PE NALTY BY THE CIT(A) IS JUSTIFIED. WE PLACE RELIANCE ON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS (P) LTD . ( 2010) 322 ITR 158 (SC). ACCORDINGLY THE GROUND RAISED BY THE REVENUE HOLDS NO MERIT.' 4.1 IN VIEW OF THE AFORESAID DECISION OF THE HON'BLE ITAT WHICH IS DIRECTLY ON THE ISSUE UNDER CONSIDERATION, I AM OF THE CONSIDERED VIEW THAT THIS IS NOT A FIT CAS E FOR LEVY OF PENALTY U/S 271(1 )(C) OF THE ACT. ACCORDINGLY, THE PENALTY LEVIED U/S 271(1)(C) IS HEREBY DEL ETED. 6. WE FIND THAT IN THE PRESENT CASE ALSO, THE PENALTY HAS BEEN IMPOSED IN RESPECT OF DISALLOWANCE OF RS.17,84,018/ - MADE BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF S ECTION 40(A)(IA) OF THE ACT AND THEREFORE, THE TRIBUNAL DECISION FOLLOWED BY CIT(A) IN THE CASE OF ACIT VS. SEAWAYS SHIPPING YARD [2011] 041 (II) ITCL 0297 (HYD - TRIB) IS SQUARELY APPLICABLE. RESPECTFULLY FOLLOWING THIS TRIBUNAL DECISION, WE DECLINE TO INTERFERE IN THE ORDER OF CIT(A). 4 7. AS REGARDS THE RELIANCE PLACED BY LEARNED D.R. OF THE REVENUE ON THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE MAK DATA (SUPRA), WE ARE OF THE CONSIDERED OPINION THAT THIS JUDGMENT IS NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE. 8. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 3 /06/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR