ACIT, Circle - 4, Kolkata, Kolkata V. M/s. Mida & Co. (P) Ltd., Kolkata

ITA 926/KOL/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48077 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 28-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MALAKAR
• Assessee Lawyers: S BANDYOPADHYAY
• Section: 271(1)(c); 143(3); 80HHC

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND , . . !' ) [BEFORE HONBLE SRI MAHAVIR SINGH, JM & HONBLE SHR I C. D. RAO, AM] # # # # / I.T.A NOS. 926 & 927/KOL/2009 $% &' $% &' $% &' $% &'/ // / ASSESSMENT YEARS : 2003-04 & 2004-05 ASSISTANT COMMISSIONER OF INCOME-TAX, VS M/S. MID A & CO. (P) LTD. CIR-4, KOLKATA. (PAN AABCM 9743 N) ( )* /APPELLANT ) (+,)*/ RESPONDENT ) FOR THE APPELLANT: SHRI S. K. MALAKAR FOR THE RESPONDENT: SHRI S. BANDYOPADHYAY !- / ORDER PER MAHAVIR SINGH, JM ( , , , , ): THESE TWO APPEALS BY REVENUE ARE ARISING OUT OF THE ORDERS OF CIT(A)-IV, KOLKATA IN APPEAL NOS. 89/CIT(A)-IV/-6-07 & 17/CIT( A)-IV/07-08, BOTH DATED 27.01.2009. ASSESSMENTS WERE FRAMED BY DCIT, CIR-4, KOLKATA FOR ASSESSMENT YEAR 2003-04, VIDE DATED 13.3.2006 AND BY ACIT, CIR-4, K OLKATA FOR ASSESSMENT YEAR 2004- 05 U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINA FTER REFERRED TO AS THE ACT) VIDE DATED 13.12.2006. THE PENALTIES IN DISPUTE WERE LE VIED BY ACIT, CIRCLE-4, KOLKATA U/S 271(1)(C) OF THE ACT VIDE HIS ORDERS DATED 27.9.200 6 AND 29.6.2007 RESPECTIVELY. 2. THE ONLY COMMON ISSUE IN THESE TWO APPEALS OF T HE REVENUE IS AGAINST THE ORDER OF CIT(A) DELETING THE PENALTY LEVIED BY ASSESSING OFFICER U/S. 271(1)(C) OF THE ACT IN RESPECT OF DISALLOWANCE OF EXCESS CLAIM OF DEDUCTIO N OF THE ASSESSEE U/S. 80HHC OF THE ACT. FOR THIS, REVENUE HAS RAISED THE FOLLOWING ID ENTICAL GROUNDS EXCEPT VARIANCE IN AMOUNT: 1. ON THE FACTS AND ON LAW THE LD. CIT(A) HAS ERRE D IN DELETING THE PENALTY U/S. 271(1)(C) AMOUNTING TO RS.11,75,597/- (FOR ASSESSME NT YEAR 2003-04 AND RS.68,04,309/- (FOR ASSESSMENT YEAR 2004-05) OBSERV ING THAT THERE WAS NO DELIBERATE ATTEMPT BY THE ASSESSEE TO CLAIM EXCESS DEDUCTION U/S. 80HHC WHEREAS DELIBERATE CONCEALMENT OR FURNISHING OF INA CCURATE PARTICULARS OF INCOME IS NOT A PRE-CONDITION FOR LEVY OF PENALTY. 2 ITA 926&927/K/2009 MIDA & CO. (P) LTD. A.Y.03-04& 04-05 3. SINCE THE ISSUE IS COMMON AND FACTS ARE EXACTLY IDENTICAL, WE WILL DECIDE THIS ISSUE BY THIS CONSOLIDATED ORDER. 4. THE BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE T HAT THE ASSESSEE HAS MADE CLAIM U/S. 80HHC FOR EXPORT BUSINESS. IN BOTH THE YEARS THE ASSESSMENT WAS FRAMED U/S. 143(3) OF THE ACT, THEREBY MAKING DISALLOWANCE U/S. 80HHC OF THE ACT. IN RESPECT TO ASSESSMENT YEAR 2003-04, THE ASSESSEE FILED REPORT IN FORM NO. 10CCAC IN RESPECT OF CLAIM OF DEDUCTION U/S. 80HHC OF THE ACT IN WHICH T OTAL EXPORT TURNOVER WAS SHOWN AT RS.9,17,32,565/- WITHOUT TAKING INTO CONSIDERATION THE FOLLOWING ITEMS:- I) AMOUNT NOT RECEIVED TILL THE PRESCRIBED DATE . 14,42,243/- II) SALE TO EXPORT HOUSE .. 43,43,250/- III) FREIGHT .. 30,71,568/- 5. THE ASSESSING OFFICER IN HIS PENALTY ORDER AS WE LL AS THE ASSESSMENT ORDER NOTED THAT ASSESSEE FAILED TO DEDUCT FREIGHT AMOUNT OF RS .30,71,568/- FROM THE TOTAL TURNOVER WHICH RESULTED IN DISTORTION OF THE CLAIM OF DEDUCT ION U/S. 80HHC. IN RESPECT TO ASSESSMENT YEAR 2004-05, THE ASSESSING OFFICER NOTE D THAT THE ASSESSEE HAS CLAIMED 100% AS AGAINST THE ALLOWABLE CLAIM OF 30% TO THE A SSESSEE IN THE YEAR UNDER CONSIDERATION ON THE BASIS OF AUDIT REPORT. THE RE PORT OF THE AUDITOR FURNISHED ALONG WITH RETURN COMPUTED DEDUCTION U/S. 80HHC AT 30% BUT IN FORM NO.10CCAC THE AUDITOR INADVERTENTLY CERTIFIED THE CLAIM AT 100% INSTEAD O F 30% AS PROVIDED. BUT THE ASSESSING OFFICER IN SPITE OF THIS FACT LEVIED THE PENALTY. CIT(A) DELETED THE PENALTY. 6. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESSEE IS A 100% EXPO RT ORIENTED UNIT IN THE LINE OF PROCESSING AND EXPORT MANGO CHATNI, PICKLES ETC. IT HAS FILED STATUTORY AUDIT REPORT AND AUDITORS REPORT IN PRESCRIBED FORM NO.10CCAC FOR THE CLAIM OF DEDUCTION U/S. 80HHC IN BOTH YEARS. THE ASSESSEE IN BOTH THE ASSE SSMENT YEARS, IN VIEW OF AUDITORS REPORT IN PRESCRIBED FORM NO. 10CCAC MADE CLAIM OF DEDUCTION U/S. 80HHC, IN ASSESSMENT YEAR 2003-04 EXCLUDING FREIGHT AMOUNT FR OM TOTAL TURNOVER AND IN ASSESSMENT YEAR 2004-05 AT 100% INSTEAD OF 30%. WE FIND THAT THE ASSESSEE HAS NEITHER CONCEALED THE PARTICULARS OF INCOME NOR FURNISHED I NACCURATE PARTICULARS OF SUCH INCOME. THE ASSESSEE HAS MERELY MADE A CLAIM OF DEDUCTION U /S. 80HHC WHICH HAS BEEN DISALLOWED BY ASSESSING OFFICER AND COMPUTED ACCORD ING TO THE PROVISIONS OF THE ACT. 3 ITA 926&927/K/2009 MIDA & CO. (P) LTD. A.Y.03-04& 04-05 EVEN IT IS NOT THE CASE OF REVENUE THAT DETAILS AND MATERIALS ARE NOT AVAILABLE ON RECORD. WE FURTHER FIND THAT ONCE THE FACTS ARE CLEARLY AVA ILABLE ON RECORDS, THE ASSESSEE HAS NOT TRIED TO CONCEAL THE PARTICULARS OF INCOME AND MORE OVER IN DISALLOWANCE OF DEDUCTION MERELY ON TECHNICAL AND ON THE BASIS OF AUDITORS R EPORT, PENALTY CANNOT BE LEVIED FOR CONCEALMENT OF INCOME AND THIS VIEW OF OURS IS FOR TIFIED BY THE DECISION OF HONBLE APEX COURT IN THE CASE OF CIT V. RELIANCE PETROPRODUCTS PVT. LTD. (2010) 322 ITR 174 (SC), WHEREIN THE HONBLE APEX COURT HAS HELD :- WE ARE NOT CONCERNED IN THE PRESENT CASE WITH THE MENS REA. HOWEVER, WE HAVE TO ONLY SEE AS TO WHETHER IN THIS CASE, AS A MATTER OF FACT , THE ASSESSEE HAS GIVEN INACCURATE PARTICULARS. IN WEBSTERS DICTIONARY, THE WORD INACCURATE HAS BEEN DEFINED AS: NOT ACCURATE, NOT EXACT OR CORRECT ; NOT ACCORDING TO TRUTH ERRONEOUS AS AN INACCURATE STATEMENT, COPY OR TRANSCRIPT . WE HAVE ALREADY SEEN THE MEANING OF THE WORD PARTI CULARS IN THE EARLIER PART OF THIS JUDGMENT. READING THE WORDS IN CONJUNCTION, THEY MU ST MEAN THE DETAILS SUPPLIED IN THE RETURN, WHICH ARE NOT ACCURATE, NOT EXACT OR CORREC T, NOT ACCORDING TO TRUTH OR ERRONEOUS. WE MUST HASTEN TO ADD HERE THAT IN THIS CASE, THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE. SUCH NOT BEING THE CASE, THERE WOULD BE NO Q UESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. A MERE MAKING OF THE CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACC URATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH CLAIM MADE IN THE RETURN CANN OT AMOUNT TO THE INACCURATE PARTICULARS. IN VIEW OF THE ABOVE FACTS, WE ARE OF THE VIEW THAT CIT(A) HAS RIGHTLY DELETED THE PENALTY LEVIED BY ASSESSING OFFICER AND WE CONFIRM THE SAME. THIS ISSUE OF REVENUES APPEALS IS DISMISSED. 7. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DI SMISSED. 8. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- . . !' , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( ' ' ' ') )) ) DATED 18TH DAY OF APRIL, 2011 ./ $01 2 JD.(SR.P.S.) 4 ITA 926&927/K/2009 MIDA & CO. (P) LTD. A.Y.03-04& 04-05 !- 3 +4 5!4&6- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT ACIT, CIRCLE-4, KOLKATA. 2 +,)* / RESPONDENT, M/S. MIDA & CO. (P) LTD., P-15/2/1, S OUTHERN AVENUE, KOLKATA-700 020. 3 . -$ ( )/ THE CIT(A), KOLKATA 4. -$ / CIT, KOLKATA 5 . => +$ / DR, KOLKATA BENCHES, KOLKATA ,4 +/ TRUE COPY, !-$?/ BY ORDER, 1 /ASSTT. REGISTRAR .