LIFT & SHIFT INDIA P.LTD, MUMBAI V. ASST CIT CEN CIR 7(1), MUMBAI

ITA 6631/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8558 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 22-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MICHAEL JERALD
• Assessee Lawyers: SINDHU GIRESH BAGWE
• Keywords: Bonafide belief; Revenue expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A , BENCH MUMBAI BEFORE SHRI MAHAVIR SINGH , JM & SHRI M.BALAGANESH, AM ITA NO. 6631 /MUM/201 8 ( ASSESSMENT YEAR : 2011 - 12 ) M/S. LIFT & SHIFT INDIA PVT. LTD., 96, CHEMBUR MANKHURD LINK ROAD, SHIVAJI NAGAR MUM BAI 400 043 VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 7(1) MUMBAI PAN/GIR NO. AACCB6406A (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY MS. SINDHU GIRESH BAGWE REVENUE BY SHRI MICHAEL JERALD DATE OF HEARING 07 / 01 /2020 DATE OF PRONO UNCEMENT 15 / 01 /2020 / O R D E R PER M. BALAGANESH (A.M) : THIS APPEAL IN ITA NO. 6631/MUM/2018 FOR A.Y. 2011 - 12 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 49, MUMBAI IN APPEAL NO. CIT(A) - 49/IT - 58/2017 - 18 D ATED 20/08/2018 (LD. CIT(A) IN SHORT) IN THE MATTER OF IMPOSITION OF PENALTY U/S.271(1)(C). ITA NO. 6631/MUM/2018 M/S. LIFT & SHIFT INDIA PVT. LTD., 2 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN UPHOLDING THE LEVY OF PENALTY U/S.271(1)(C) OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. WE HAVE HEARD RIVAL SUBMISSIONS. WE FIND THAT ASSESSEE IS ENGAGED IN THE BUSINESS OF HEAVY TRANSPORTATION FOR WHICH IT HAD IMPORTED EQUIPMENTS BY AVAILING BUYERS CREDIT FACILITY FROM BANK. THE EXCHANGE RATE DIFFERENCE BETWEE N THE DATE OF IMPORT AND THE ACTUAL DATE OF PAYMENT RESULTED IN LOSS AND THE SAME WAS CLAIMED BY THE ASSESSEE AS REVENUE EXPENDITURE ON A BONAFIDE BELIEF BY PLACING RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF INDIAN CEMENTS LTD. VS . CIT REPORTED IN 60 ITR 52 (SC) WHEREIN IT WAS HELD THAT THE PURPOSE FOR WHICH THE FUNDS HAVE BEEN UTILISED IS NOT RELEVANT. THE ENTIRE FACTUAL MATRIX OF ASSESSEE AVAILING BUYERS CREDIT FACILITY FROM BANK FOR IMPORTING EQUIPMENTS TOGETHER WITH THE WORKIN GS FOR EXCHANGE RATE DIFFERENCE THEREON WERE DULY PLACED ON RECORD BEFORE THE LOWER AUTHORITIES. DURING THE COURSE OF PROCEEDINGS, THE ASSESSEE UNDERSTOOD THAT SINCE THE EXCHANGE RATE DIFFERENCE AROSE ON ACCOUNT OF IMPORT OF EQUIPMENTS WHICH WERE CAPITAL I N NATURE AND ACCORDINGLY, AGR E ED TO THE CONTENTION OF THE LD. AO THAT THE EXCH ANGE LOSS THEREON SHOULD ALSO ADD TO THE COST OF DEPRECIABLE ASSET. ACCORDINGLY, NO APPEAL WAS PREFERRED BY THE ASSESSEE ITA NO. 6631/MUM/2018 M/S. LIFT & SHIFT INDIA PVT. LTD., 3 AGAINST THE QUANTUM DISALLOWANCE MADE BY THE LD. AO. WE F IND FROM THE PENALTY ORDER PASSED BY THE LD. AO U/S.271(1)(C) OF THE ACT DATED 30/03/2017 THAT ULTIMATELY, THE PENALTY WAS LEVIED FOR CONCEALMENT OF INCOME BY THE LD. AO. WE FIND THAT THE ENTIRE FACTUAL MATRIX OF ARRIVING AT THE EXCHANGE FLUCTUATION LOSS H AS BEEN VOLUNTARILY AND DULY PLACED ON RECORD BY THE ASSESSEE IN THE RETURN OF INCOME AND IN SUBSEQUENT FURNISHING OF DETAILS DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ALSO THE BONAFI DE BELIEF OF THE ASSESSEE BY PLACING RELIANCE ON THE DECISION OF H ONBLE SUPREME COURT IN THE CASE OF INDIAN CEMENTS REFERRED TO SUPRA. HENCE, THERE CANNOT BE ANY CONCEALMENT OF INCOME THAT COULD BE ALLEGED ON THE ASSESSEE BY THE LD. AO WARRANTING LEVY OF PENALTY MERELY BECAUSE THE ASSESSEE HAD AGREED TO THE QUANTUM ADDI TION. IF THE CONTENTION OF THE REVENUE IS TO BE ACCEPTED, THEN IN EVERY CASE WHEREVER ADDITION / DISALLOWANCE HAS BEEN MADE, IT WOULD AUTOMATICALLY RESULT IN LEVY OF PENALTY U/S 271(1)(C ) OF THE ACT WHICH WOULD ADMITTEDLY IGNORE THE PRINCIPLES OF BONAFIDE BELIEF AND UNDERSTANDING OF LAWS OF THE ASSESSEE. IN THESE FACTS AND CIRCUMSTANCES, WE HAVE NO HESITATION IN DIRECTING THE LD. AO TO CANCEL THE LEVY OF PENALTY IN THE SUM OF RS.2,43,607/ - U/S.271(1)(C) OF THE ACT. ACCORDINGLY, THE GROUNDS RAISED BY THE AS SESSEE ARE ALLOWED. ITA NO. 6631/MUM/2018 M/S. LIFT & SHIFT INDIA PVT. LTD., 4 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15 / 01 /2020 SD/ - ( MAHAVIR SINGH ) SD/ - (M.BALAGANESH) JUDICIAL MEMBER ACC OUNTANT MEMBER MUMBAI ; DATED 15 / 01 / 2020 KARUNA , SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//