M/s. Shivam Oxygen Pvt.Ltd., Nashik V. Asstt.CIT, Circle -1, Nashik, Nashik

ITA 76/PUN/2005

• Counselvise Citation: 7624514 RSA 2005
• Duration Of Justice: 6 year(s) 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 24-05-2011
• Assessment Year: misc
• Appeal Filed On: 17-01-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P R MORE
• Assessee Lawyers: REAJENDRA AGIWAL
• Keywords: Business income; Depreciation; Retrospective amendment; Capital receipt; Unabsorbed depreciation
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI G.S. PANNU (AM) ITA NOS. 76/PN/2005 & 714/PN/2006 (ASSTT. YEAR : 2001-02 & 2001-02) M/S. SHIVAM OXYGEN PVT. LTD. ... APPELLANT P-33/6, ASHOKVAN COLONY, CIDCO, NASIK 422 099 V. ACIT, CIRCLE - 1, NASIK RESPONDENT APPELLANT BY : SHRI REAJENDRA AGIWAL RESPONDENT BY : SHRI P.R. MORE ORDER PER I.C. SUDHIR, JM THE ASSESSEE HAS QUESTIONED FIRST APPELLATE ORDER ON SEVERAL GROUNDS INVOLVING TWO ISSUES. FIRSTLY, WHETHER LD CIT(A) WAS JUSTIFIED IN CONFIRMING ASSESSMENT OF TOTAL INCOME AT RS. 2,82, 759/- AND CONFIRMING ACTION OF THE A.O TREATING PROFIT ON SALE OF DEPREC IABLE ASSETS AS SHORT TERM CAPITAL GAIN U/S. 50 OF THE ACT AS AGAINST CLA IM ON BUSINESS INCOME BY THE ASSESSEE (GROUND NO. 1 & 2). SECONDLY, AS T O WHETHER THE LD CIT(A) HAS ERRED IN CONFIRMING LEVY OF INTEREST U/ S. 234B (GROUND NO. 6). AS AN ALTERNATIVE GROUND, THE ASSESSEE HAS QUESTIO NED THE FIRST APPELLATE ORDER IN NOT ALLOWING SET OFF OF UNABSORBED DEPR ECIATION AGAINST THE INCOME OF RS.2,82,759/- TAXED AS SHORT TERM CAPITAL GAIN ? (GROUND NOS.3 TO 5). 2. WE HAVE HEARD AND CONSIDERED THE ARGUMENTS ADVAN CED BY THE PARTIES IN VIEW OF ORDERS OF THE AUTHORITIES BELOW, MATERIAL AVAILABLE ON RECORD AND THE DECISIONS RELIED UPON. ITA . NO 76/PN/2005 & 714/PN/2006 SHIVAM OXYGEN (P) LTD. A.Y 2001-02 PAGE OF 9 2 3. THE RELEVANT FACTS ARE THAT DURING THE YEAR, THE ASSESSEE COMPANY SOLD CYLINDERS FOR RS. 2,82,579/- ON WHICH, DEPREC IATION AT THE RATE OF 100% HAD ALREADY BEEN CLAIMED IN EARLIER YEARS. T HE ASSESSEE TREATED THE SURPLUS ON SALE OF THE SAID CYLINDERS AS BUSI NESS INCOME AND SET IT OFF AGAINST THE CARRIED FORWARD UNABSORBED DEPRECIA TION. IN THIS REGARD, IT RELIED UPON THE DECISION OF BOMBAY BENCH OF THE TR IBUNAL IN THE CASE OF J.K. CHEMICALS LTD. VS. ACIT, ITA NO. 8618/BOM/1989 & OTHERS, DATED 01.11.1998(A.YS. 1986-87 AND 1989-90). THE A.O, H OWEVER, TREATED THE SAID SURPLUS AS SHORT TERM CAPITAL GAIN BY IN VOKING THE PROVISIONS OF SEC. 50 OF THE ACT AND DID NOT ALLOW THE SET OFF AGAINST THE CARRIED FORWARD UNABSORBED DEPRECIATION, BY CHARGING THE SAME TO INCOME-TAX. THE LD CIT(A) HAS UPHELD THE ACTION OF THE A.O. RES ULTING INTO THE PRESENT APPEAL PREFERRED BY THE ASSESSEE. 4. IN SUPPORT OF THE GROUNDS 1 & 2 AND THE ALTERNAT IVE GROUND NOS. 3, 4 & 5, THE LD. A.R. HAS BASICALLY PLACED RELIANCE O N THE FOLLOWING DECISIONS : I) J.K. CHEMICALS LTD. V/S. ACIT, ITA NO. 8618/BOM/ 1989 & OTHERS, ORDER DAED 1.11.1998 (A.YS. 1986-87 & 1989- 90) II) NECTAR BEVERAGES PVT. LTD. V/S. DCIT, 267 ITR 385 (BOM). HE HAS ALSO PLACED RELIANCE ON THE OTHER DECISIONS CITED BEFORE THE LD CIT(A) AND ON THE FOLLOWING DECISIONS BEFORE US : I) DIGITAL ELECTRONICS LTD., V/S. ACIT, ITA NO. 1658/MUM/2009(A.Y. 2005-06), ORDER DT. 20 TH OCTOBER 2010 II) DCIT V/S. TIMES GUARANTEE LTD. (2010), 41 DTR (MUM) (S.B), 193. ITA . NO 76/PN/2005 & 714/PN/2006 SHIVAM OXYGEN (P) LTD. A.Y 2001-02 PAGE OF 9 3 5. THE LD. D.R., ON THE OTHER HAND, TRIED TO JUSTIF Y THE FIRST APPELLATE ORDER ON THE ISSUE. 6. CONSIDERING THE ABOVE SUBMISSIONS, WE DO NOT F IND INFIRMITY IN THE FIRST APPELLATE ORDER AS THE LD CIT(A) HAS PASSED A REASONED ORDER ON THE ISSUE. HE HAS DISTINGUISHED THE DECISIONS RELIED U PON BY THE LD. A.R. SINCE THOSE DECISIONS ARE HAVING DIFFERENT FACTS. WE FULLY AGREE WITH THE OBSERVATIONS OF THE LD CIT(A) THAT FOLLOWING 3 CON DITIONS ARE TO BE SATISFIED BEFORE PROVISIONS OF SEC. 50 CAN BE ATTR ACTED :- I) TRANSFERRED ASSET FORMS PART OF THE BLOCK OF TH E ASSET; II) DEPRECIATION HAS BEEN ALLOWED UNDER THE ACT; III) FULL VALUE OF CONSIDERATION ACCRUED OR ARISEN AS A RESULT OF TRANSFER OF SUCH ASSET CAN BE ASCERTAINED. THE MATERIAL ASPECTS IN THE PRESENT CASE UNDISPUTED LY REMAINED THAT THE ASSESSEE HAD CLAIMED DEPRECIATION ON THE GAS CYLIND ERS FORMING PART OF THE BLOCK OF ASSETS IN PAST YEARS, HENCE PROVISIONS U/S. 50 OF THE ACT ARE APPLICABLE ON THE SALE RECEIPTS OF THOSE CYLINDERS. FOR A READY REFERENCE, PARA 6, 6.1 AND 6.2 OF FIRST APPELLATE ORDER ARE B EING REPRODUCED HEREUNDER : 6. I HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER I N APPEAL AS WELL AS THE FACTS OF THE CASE AND GROUNDS OF APPEAL . I HAVE ALSO CAREFULLY CONSIDERED THE WRITTEN SUBMISSIONS AS WEL L AS ORAL ARGUMENTS OF THE LD. COUNSEL OF THE APPELLANT AND A LSO VARIOUS DECISIONS RELIED UPON BY THE APPELLANT IN SUPPORT OF THE GROUNDS OF APPEAL. THE ALTERNATIVE ARGUMENT OF THE APPELLANT THAT THE DEPRECIATION CLAIMED ON THE CYLINDER HAS NOT ACTUA LLY BEEN ALLOWED AS THE SAME IS BEING CARRIED FORWARD IN THE ABSENCE OF ABSORPTION, IS NOT BASED ON PROPER APPRECIATION OF FACTS AND LA W, BECAUSE THE CARRY FORWARD OF DEPRECIATION IS ALLOWED BY THE A. O. ONLY AFTER ACCEPTING THE SAME AS ALLOWABLE. THE ABSORPTION OF THE C/F DEPRECIATION IS A DIFFERENT ISSUE WHICH CANNOT BE E QUATED AS NON ALLOWANCE OF DEPRECIATION AS THE REJECTION OF ASSE SSEES CLAIM FOR DEPRECIATION DOES NOT ENTITLE IT TO C/F THE DEPRECI ATION FOR ADJUSTING ITA . NO 76/PN/2005 & 714/PN/2006 SHIVAM OXYGEN (P) LTD. A.Y 2001-02 PAGE OF 9 4 IN THE FOLLOWING YEARS. THEREFORE, IT IS NOT POSSI BLE TO BUY ASSESSEES ARGUMENT THAT THE DEPRECIATION HAS NOT B EEN ALLOWED BY THE DEPARTMENT ON THE CYLINDERS IN QUESTION. THE A NOTHER ALTERNATIVE ARGUMENT OF THE APPELLANT THAT AMENDM ENT MADE IN SECTION 32(2) W.E.F. A.Y. 2002-03 IS TO BE CONSTRUE D AS CLARIFICATORY AMENDMENT ALSO DOES NOT HOLD GOOD IN VIEW OF THE FA CT THAT WHEREVER INTENTION IS TO APPLY THE PROVISIONS IN RE SPECT OF THE EARLIER YEARS A RETROSPECTIVE AMENDMENT IS TO BE MA DE. SINCE, IN THE AMENDMENT REFERRED ABOVE BY THE APPELLANT, IT H AS BEEN MADE SPECIFICALLY EFFECTIVE FROM A.Y. 2002-03, IT IS NOT POSSIBLE TO APPLY THE PROVISIONS IN RESPECT OF THE EARLIER YEARS WHEN NO SUCH PROVISION EXISTED. 6.1 THE APPELLANT HAS CLAIMED 100% DEPRECIATION ON GAS CYLINDERS AND DEBITED THE SAME TO PROFIT AND LOSS ACCOUNT ON THE BASIS OF RATES OF DEPRECIATION PROVIDED IN APPENDIX-1, AS P ER RULE 5 OF THE INCOME-TAX RULES, 1961. IN THE SAID APPENDIX-1 PAR TICULARS OF ASSETS IN BLOCK OF ASSET ALONGWITH PRESCRIBED RATE S OF DEPRECIATION ARE GIVEN. THE ASSET SOLD BY THE APPELLANT I.E. GA S CYLINDERS ARE APPEARING IN THE SAID APPENDIX-1, REFERRED TO IN R ULE 5 IN BLOCK OF ASSETS III MACHINERY AND PLANT AT SR. NO.(3)(V) AND PRESCRIBED RATE OF DEPRECIATION FOR THE SAID ASSET IS 100%. DURIN G THE YEAR UNDER APPEAL SOME CYLINDERS WERE SOLD AND THE APPELLANT H AD CLAIMED THE SAME AS INCOME FROM BUSINESS AND CLAIMED THAT THE S AME CANNOT BE TREATED AS SHORT TERM CAPITAL GAIN U/S. 50 RELYI NG UPON THE DECISION OF BOMBAY HIGH COURT REPORTED IN 267 ITR 3 85 AND TRIBUNALS DECISION IN THE CASE OF J.K. CHEMICALS. 6.2 THE DECISIONS RELIED UPON BY THE APPELLANT ARE DISTINGUISHABLE ON THE FACTS OF THE CASE :- 1. NECTAR BEVERAGES PVT. LTD., VS. DCIT BOMBAY H. C.(PANJI BENCH) THIS CASE RELATES TO A.Y. 1991-92. THE A SSESSEE HAD CLAIMED 100% DEDUCTION IN RESPECT OF THE BOTTLES AN D CRATES PURCHASED AS PER PROVISO TO SECTION 32(1)(II) OF TH E ACT AS COST OF THE ASSET WAS BEING BELOW RS. 5,000/-. THE ASSESSE E CLAIMED THAT (I) RECEIPT IS CAPITAL RECEIPT AND HENCE NOT LIABIL E TO TAX; (II) THE ASSET DOES NOT FORM PART OF THE BLOCK ASSET AND HEN CE PROVISIONS OF ITA . NO 76/PN/2005 & 714/PN/2006 SHIVAM OXYGEN (P) LTD. A.Y 2001-02 PAGE OF 9 5 SECTION 50 ARE NOT APPLICABLE. THE A.O. TAXED THE SALE PROCEEDS U/S. 50 OF THE I.T. ACT. THE CIT(A) AND TRIBUNAL HELD THAT THE SALE PROCEEDS ARE TAXABLE U/S. 41(1). IN APPEAL BY THE ASSESSEE BEFORE BOMBAY HIGH COURT TWO QUESTIONS WERE RAISED AND DEC IDED BY THE HONBLE HIGH COURT :- A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE SUM OF R S. 50,850/- WAS LIABLE TO TAX U/S. 41(1) OF THE ACT ? B) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE PROVISIO NS OF SECTION 41(1) OF THE ACT ARE ATTRACTED SO AS TO BRING TO TAX EXCE SS REALIZED BY AN ASSESSEE OVER AND ABOVE WRITTEN DOWN VALUE OF THE A SSET ? THE ABOVE QUESTIONS WERE CONSIDERED AND DECIDED BY THE HIGH COURT IN FAVOUR OF THE REVENUE. THE FACTS OF THE CASE DECIDED ABOVE ARE NOT APPLICA BLE TO THE FACTS OF THE APPELLANTS CASE ON TWO COUNTS :- I) IN THE CASE DECIDED BY THE HIGH COURT, THE DEDUCTIO N WAS ALLOWED UNDER PROVISO TO SECTION 32(1)(II) AS THE COST OF THE ASSET I.E. BOTTLES AND CRATES PURCHASED WAS LESS THAN RS. 5000/- EACH. THE SAID ASSET I.E. BOTTLES AND CRATES WAS NOT INCL UDED IN BLOCK OF ASSETS IN APPENDIX-1, REFERRED TO IN RULE 5 OF I.T. RULES, 1961 AND HENCE RATE OF DEPRECIATION WAS ALSO NOT PRESCRIBED FOR THE SAID ASSET. IN VIEW OF THESE FACTS, THE CIT(A) AND TRI BUNAL COULD NOT HELD THAT THE SALE PROCEEDS ARE TAXABLE U/S. 50. T HE CASE OF THE APPELLANT RELATES TO A.Y. 2001-02. THE SAID PROVI SO TO SECTION 32(1)(II) ALLOWING DEDUCTION OF ASSET BELOW RS.5,0 00/- IS DELETED FROM A.Y. 1996-97. FURTHER AS PER APPENDIX-1 REFER RED TO IN RULE 5 OF THE I.T. RULES, 1961 THE GAS CYLINDERS SOLD BY T HE APPELLANT ARE INCLUDED IN BLOCK OF ASSETS I.E. III MACHINERY AND PLANT AT ENTRY NO. 3(V) AND RATE OF DEPRECIATION IS ALSO PRESCRIBED AT 100%. HENCE, IN THE CASE UNDER APPEAL BEFORE BOMBAY HIGH COURT, THE ASSET SOLD I.E. BOTTLES AND CRATES DID NOT FORM PART OF BLOCK OF AS SET AS PER APPENDIX-1, REFERRED TO IN RULE 5 OF I.T. RULES, 1 961, WHEREAS IN THE CASE UNDER APPEAL THE ASSET SOLD I.E. GAS CYLIN DERS FORM PART OF ITA . NO 76/PN/2005 & 714/PN/2006 SHIVAM OXYGEN (P) LTD. A.Y 2001-02 PAGE OF 9 6 THE BLOCK OF ASSET FOR WHICH DEPRECIATION RATE IS P RESCRIBED AS PER APPENDIX-1, REFERRED TO IN RULE 5 OF THE I.T. RULES , 1962. II) THE QUESTIONS POSED BY ASSESSEE ON APPEAL BEFORE T HE HIGH COURT WERE :- A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE SUM OF RS. 50,850/- WAS LIABLE TO TAX U/S. 41(1) OF THE ACT ? B) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE PROVISIO NS OF SECTION 41(1) OF THE ACT ARE ATTRACTED SO AS TO BRING TO TAX EXCE SS REALIZED BY AN ASSESSEE OVER AND ABOVE WRITTEN DOWN VALUE OF THE A SSET ? HENCE THE ISSUE DECIDED BY THE HONBLE BOMBAY HIGH COURT IS ON DIFFERENT FACTS AS STATED IN (1) ABOVE AND THE I SSUE IS ABOUT TAXABILITY IN ABOVE CIRCUMSTANCES OF THE SALE PROCE EDS OF ASSETS U/S.41(1). THE ISSUE ABOUT TAXABILITY OF ASSET SOLD U/S. 50 ON THE FACTS OF THE APPELLANTS CASE WAS NEVER DECIDED BY THE BOMBAY HIGH COURT. 2) J.K. CHEMICALS VS. DCIT THIS CASE RELIED UPON BY THE APPELLANT IS UNREPORTE D. AS PER THE GIST, AVAILABLE AS REPORTED IN B.C.A. JOURNAL OF APRIL, 2001, THE TRIBUNAL ON THE BASIS OF NOTES TO THE FORM NO. 1, OF THE RETURN OF INCOME CAME TO THE CONCLUSION THAT, ON SALE OF DEPR ECIABLE ASSETS, THE INCOME OF THE APPELLANT IS TO BE COMPUTED AS P ER PROVISIONS OF SECTION 50, BUT THE SAME IS TO BE TAXED AS BUSINESS INCOME. THIS CASE RELATES TO A.Y. 1989-90. THE FORM NO.1 OF RET URN OF INCOME AS WAS APPLICABLE TO A.Y. 1989-90 WAS REPLACED BY NEW FORMS IN 1995 AND ALSO IN 2001. THESE NEW FORMS PUBLISHED IN I.T . RULES, 1962 ARE APPLICABLE TO THE APPELLANT FOR A.Y . 2001-02. FROM THESE NEW FORMS APPLICABLE TO THE CASE OF THE APPELLANT D O NOT SUPPORT THE CONTENTION OF THE APPELLANT. 6. THE FIRST APPELLATE ORDER ON THE ISSUE AS DISCUS SED ABOVE IS COMPREHENSIVE AND REASONED ONE TO WHICH WE FULLY C ONCUR WITH. THE SAME IS UPHELD. THE ISSUE RAISED IN GROUND NOS. 1 & 2 AND 3 TO 5 ARE ITA . NO 76/PN/2005 & 714/PN/2006 SHIVAM OXYGEN (P) LTD. A.Y 2001-02 PAGE OF 9 7 THUS DECIDED AGAINST THE ASSESSEE. THESE GROUNDS A RE ACCORDINGLY REJECTED. 6.1 IN GROUND NO. 6, THE ISSUE OF LEVY OF INTEREST U/S. 234B HAS BEEN RAISED . SINCE NO ARGUMENT HAS BEEN ADVANCED BEFOR E US IN SUPPORT OF THIS GROUND, THE SAME IS REJECTED AS NOT PRESSED. 7. CONSEQUENTLY, APPEAL IS DISMISSED. ITA NO. 714/PN/2006 8. THE ASSESSEE HAS QUESTIONED FIRST APPELLATE ORDE R ON SEVERAL GROUNDS INVOLVING THE SOLE ISSUE AS TO WHETHER THE LD CIT(A) HAS ERRED IN CONFIRMING THE PENALTY LEVIED BY THE A.O U/S. 271(1 )(C ) ON THE ADDITION MADE DUE TO DENIAL OF THE CLAIMED PROFIT ON THE SAL E OF CYLINDERS AS BUSINESS INCOME. 9. WE HAVE ALREADY DISCUSSED THE RELEVANT FACTS IN THE QUANTUM APPEAL HERE-IN-ABVE AS TO HOW THE CLAIMED BUSINESS INCOME ON THE SALE RECEIPTS OF CYLINDERS WAS DENIED BY THE A.O. AND T HE A.O FOUND IT A FIT CASE TO WORK OUT SHORT TERM CAPITAL GAIN U/S. 50 OF THE ACT. 10. THE A.O. HAS LEVIED PENALTY U/S. 271(1)(C ) AT RS. 1,11,760/- ON THE BASIS THAT THE FIRST APPEAL OF THE ASSESSEE AG AINST THE ADDITION OF RS. 2,82,579/- MADE BY THE A.O BY WAY OF DENIAL OF THE CLAIMED BUSINESS INCOME ON THE SALE RECEIPTS OF CYLINDERS HAS BEEN DISMISSED. IN THE PENALTY PROCEEDINGS, THE A.O HAS ALLEGED THAT THE A SSESSEE WHILE CLAIMING SALE RECEIPTS OF THE CYLINDERS ON WHICH 100% DEPRE CIATION WAS CLAIMED IN THE PAST, THE ASSESSEE HAS FURNISHED INCORRECT PART ICULARS. THE LD CIT(A) HAD UPHELD THIS ACTION OF THE A.O. ITA . NO 76/PN/2005 & 714/PN/2006 SHIVAM OXYGEN (P) LTD. A.Y 2001-02 PAGE OF 9 8 11. BEFORE THE TRIBUNAL, THE LD. A.R. CONTENDED THA T THE ISSUE INVOLVED REGARDING THE CLAIMED PROFIT ON SALE OF CYLINDERS AS BUSINESS INCOME WAS A DEBATABLE ISSUE. THE ASSESSEE TRIED TO JUSTIFY THIS CLAIM ON THE BASIS OF SOME CITED DECISIONS WHICH WERE NOT ACCEPTABLE T O THE AUTHORITIES BELOW. IT IS NOT THE CASE OF THE REVENUE THAT ASSE SSEE HAD CONCEALED ANY NECESSARY INFORMATION REGARDING THE CLAIM. THE A.O HAS, ON THE OTHER HAND, DENIED THE CLAIM ON THE BASIS OF NECESSARY I NFORMATION MADE AVAILABLE BY THE ASSESSEE IN THIS REGARD. HE PLACE D RELIANCE ON THE FOLLOWING DECISIONS : I) CIT V CAPLIN POINT LABORATORIES LTD. (MAD) 293 ITR 524 II) CIT V NATH BROS EXIM INTERNATIONAL LTD. (DELHI ) 288 ITR 670 III) CIT V INTERNATIONAL AUDIO VISUAL CO. (DELHI) 288 ITR 570 IV) CHANDRAPAL BAGGA V ITAT (RAJASTHAN) 261 ITR 67 V) BURMAH-SHELL OIL STORAGE AND DISTRIBUTING CO. OF IN DIA V. ITO(CAL) 112 12. THE LD. D.R., ON THE OTHER HAND, TRIED TO JUSTI FY THE FIRST APPELLATE ORDER. 13. CONSIDERING THE ABOVE SUBMISSIONS, WE FIND THAT IT IS AN UNDISPUTED FACT IN THE PRESENT CASE THAT THE A.O HAD DENIED TH E CLAIMED PROFIT ON SALE OF CYLINDER AS BUSINESS INCOME AND WORKED OUT THE SHORT TERM CAPITAL GAIN U/S. 50 OF THE ACT ON THE SALE OF CYLINDERS ON THE BASIS OF INFORMATION DISCLOSED BY THE ASSESSEE IN THIS REGARD. THE CAS E OF THE ASSESSEE HAS BEEN DISCUSSED HEREINABOVE IN THE QUANTUM APPEAL, W HEREIN THE ASSESSEE TRIED TO JUSTIFY HIS CLAIM ON THE BASIS OF CERTAIN DECISIONS AND THUS THE ISSUE WAS DEBATABLE ONE. UNDER THESE CIRCUMSTANCE S, IT CAN NOT BE ESTABLISHED BEYOND DOUBT FROM THE FACT OF THE PRES ENT CASE THAT THERE WAS CONCEALMENT OF PARTICULARS OF INCOME OR FURNISH ING OF INACCURATE ITA . NO 76/PN/2005 & 714/PN/2006 SHIVAM OXYGEN (P) LTD. A.Y 2001-02 PAGE OF 9 9 PARTICULARS THEREOF ON THE PART OF THE ASSESSEE TOW ARDS THE ADDITION. WE, THUS, HOLD THAT IN THE PRESENT CASE, THERE WAS NO O CCASION FOR THE AUTHORITIES BELOW TO LEVY THE PENALTY U/S. 271(1)(C ) ON THE ADDITION IN QUESTION. WE, THUS, WHILE SETTING ASIDE ORDERS OF THE AUTHORITIES BELOW DIRECT THE A.O TO DELETE THE PENALTY. THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE. THE GROUNDS RAISING THE ISSUE ARE THUS R EJECTED. 14. CONSEQUENTLY, THE APPEAL IS ALLOWED. 15. IN SUMMARY, ITA NOS. 76/PN/2005 IS DISMISSED AN D ITA NO. 714/PN/2006 IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30TH J UNE 2011. SD/- SD/- ( G.S.PANNU ) ACCOUNTANT MEMBER ( I.C. SUDHIR ) JUDICIAL MEMBER PUNE, DATED THE 30TH JUNE, 2011 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT- I, NASHIK 4. THE CIT(A)- I, NASHIK 5. THE D.R. A BENCH, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE