DCIT, Circle- 22(1), New Delhi V. Sanden Vikas India Ltd., New Delhi

ITA 6901/DEL/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5265 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 16-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K TEWARI
• Section: 143(3)

Judgement Text

ITA NO. 6901/DEL/2017 ASSESSMENT YEAR 2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI N.K. SAINI, VICE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 6901/DEL/2017 ASSESSMENT YEAR: 2012-13 DCIT, VS SANDEN VIKAS INDIA LTD., CIRCLE 22(1), 12-A, SHIVAJI MARG, NEW DELHI. NEW DELHI-110015 (PAN: AABCS3174M) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K. TEWARI, SR. DR RESPONDENT BY : SHRI K. SAMPATH, ADVOCATE DATE OF HEARING: 25.07.2018 DATE OF PRONOUNCEMENT: 23.10.2018 ORDER PER SUDHANSHU SRIVASTAVA, J.M. THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER DATED 9.8.2017 PASSED BY THE LD. CIT (APPEALS)-8, N EW DELHI FOR ASSESSMENT YEAR 2012-13 WHEREIN, VIDE THE IMPUGNED ORDER, THE LD. CIT (A) HAS DELETED THE PENALTY OF RS. 27,29,27 3/- IMPOSED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAF TER REFERRED TO AS 'THE ACT'). 2.0 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE C OMPANY HAD FILED ITS RETURN OF INCOME DECLARING A LOSS OF RS. 25,32,24,671/-. ITA NO. 6901/DEL/2017 ASSESSMENT YEAR 2012-13 2 THE ASSESSMENT WAS FRAMED U/S 143(3) AFTER MAKING A DISALLOWANCE OF RS. 84,12,000/- BEING EXCESS CLAIM OF DEDUCTION U/S 35(2AB) OF THE ACT. DURING THE COURSE OF ASSES SMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD CLAIMED A DEDUCTION OF RS. 2,069.26 LAKH U/S 35(2AB ). HOWEVER, IT WAS LATER FOUND THAT THE DEPARTMENT OF SCIENCE A ND INDUSTRIAL RESEARCH (DSIR), MINISTRY OF SCIENCE & TECHNOLOGY, GOVERNMENT OF INDIA HAD ACCORDED APPROVAL FOR LESSER AMOUNT OF ASSESSEES APPLICATION FOR RECOGNITION OF THE IN-HOUSE RESEARC H & DEVELOPMENT FACILITIES OF THE COMPANY. AS A RESULT OF THE APPROVAL, THE CLAIM OF DEDUCTION WAS RESTRICTED TO RS. 1893.92 LAKH AND RS. 84.12 LAKH WAS DISALLOWED BY THE ASSES SING OFFICER AS BEING EXCESS DEDUCTION CLAIMED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. PENALTY PROCEEDINGS WERE ALSO INI TIATED ON THIS DISALLOWANCE OF DEDUCTION CLAIMED FOR FILING INACCU RATE PARTICULARS OF INCOME AND, SUBSEQUENTLY, AFTER CONSIDERING THE REPLY OF THE ASSESSEE, PENALTY OF RS. 27,29,273/- WAS IMPOSED BY THE ASSESSING OFFICER. 2.1 THE ASSESSEES APPEAL AGAINST THE PENALTY IMPOS ED WAS ALLOWED BY THE LD. CIT (A) AND THE PENALTY WAS DELE TED AFTER NOTING THAT AN IDENTICAL PENALTY IN ASSESSEES OWN CASE FOR ITA NO. 6901/DEL/2017 ASSESSMENT YEAR 2012-13 3 ASSESSMENT YEAR 2010-11 WAS DELETED BY THE ITAT DEL HI BENCH IN ITA NO. 4253/DEL/2015 VIDE ORDER DATED 11.12.2017. 2.2 NOW, THE DEPARTMENT IS IN APPEAL AGAINST THE DE LETION OF PENALTY BY THE LD. CIT (A) AND HAS RAISED THE FOLLO WING GROUNDS OF APPEAL:- 1. THAT THE LD. CIT(A) ERRED IN DELETING THE PENA LTY U/S 271(1)(C) OF RS. 27,29,273/- WITHOUT APPRECIATING THE FACT THAT IN THE ROI, THE ASSESSEE HAS NOT MENTIONED ANY NOTE REGARDING THE PENDING APPROVAL FROM DSIR WHEREBY TH E DSIR DID NOT APPROVE RS. 84.12 LAKHS FOR THE PURPOS E OF DEDUCTION U/S 35(2AB). 3.0 THE LD. SR. DR PLACED EXTENSIVE RELIANCE ON THE ORDER OF THE ASSESSING OFFICER AND VEHEMENTLY ARGUED THAT THE AS SESSEE HAD FILED INACCURATE PARTICULARS OF INCOME BY CLAIMING WRONG DEDUCTION U/S 35(2AB) AND THEREFORE, THE PENALTY HA D BEEN RIGHTLY IMPOSED. 4.0 IN RESPONSE, THE LD. AR PLACED ON RECORD A COPY OF ITATS ORDER IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 20 10-11 AND SUBMITTED THAT ON IDENTICAL FACTS, THE ITAT DELHI B ENCH HAD UPHELD THE ORDER OF THE LD. CIT (A) IN DELETING AN IDENTICAL PENALTY IN ASSESSMENT YEAR 2010-11. 5.0 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PE RUSED THE MATERIAL AVAILABLE ON RECORD. ALTHOUGH THE LD. SR. DR HAS ARGUED VEHEMENTLY AGAINST THE ACTION OF THE LD. CIT (A) IN DELETING THE ITA NO. 6901/DEL/2017 ASSESSMENT YEAR 2012-13 4 PENALTY, WE FIND THAT THE ISSUE IS COVERED IN FAVOU R OF THE ASSESSEE BY THE ORDER OF THE ITAT DELHI BENCH IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2010-11 IN ITA NO. 4253/DEL/2015 WH EREIN, VIDE ORDER DATED 11.12.2017, THE ITAT HAD DELETED I DENTICAL PENALTY BY OBSERVING THAT THE IMPUGNED PENALTY WAS LEVIED ONLY WITH REFERENCE TO THE AMOUNT OF DEDUCTION CLAIMED B Y THE ASSESSEE U/S 35(2AB) OF THE ACT. THE COORDINATE BE NCH HAS NOTED THAT THE AMOUNT OF THE DEDUCTION WAS AFFECTED DUE TO CERTAIN EXPENSES HAVING BEEN INCURRED BY THE ASSESS EE WHICH WERE NOT APPROVED BY THE DSIR. IT HAS ALSO BEEN NO TED THAT THE DISAPPROVAL BY THE DSIR FOR SUCH EXPENSES CAME AT A LATER DATE THAN THE FILING OF RETURN OF INCOME AND, THEREFORE, IT SHOULD NOT BE INFERRED THAT THE ASSESSEE HAD CONCEALED ITS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. THE LD. SR. DR WAS ALSO NOT ABLE TO POINT OUT ANY JUDICIAL PRECEDENT TO THE CON TRARY IN THIS REGARD AND, THEREFORE, ON IDENTICAL FACTS, RESPECTF ULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2010-11 AS AFORESAID, WHICH HAS DUL Y BEEN NOTED AND FOLLOWED BY THE LD. CIT (A) ALSO WHILE DE LETING THE IMPUGNED PENALTY, WE FIND NO REASON TO INTERFERE WI TH THE FINDINGS ITA NO. 6901/DEL/2017 ASSESSMENT YEAR 2012-13 5 RECORDED BY THE LD. CIT (A) AND ACCORDINGLY, WE DIS MISS THE GROUNDS RAISED BY THE DEPARTMENT. 6.0 IN THE RESULT, THE APPEAL FILED BY THE DEPARTME NT STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD OCTOBER, 2018. SD/- SD/- (N.K. SAINI) (SUDHANSH U SRIVASTAVA) VICE PRESIDENT JUDICIAL MEMBE R DATED: 23 RD OCTOBER , 2018 GS COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT BY ORDER ASSTT. REGISTRAR