GENUS POWER INFRASTRUCTURES LTD., Jaipur V. ITO, Jaipur

ITA 942/JPR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5588 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 27-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Section: 80G

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPAN] YS[KK LNL; ,OA JH DQY HKKJR ] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 942/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. M/S. GENUS POWER INFRASTRUCTURES LTD., (PREVIOUSLY KNOWN AS GENUS OVERSEAS ELECTRONICS LTD.), SPL-3, RIICO IND. AREA, SITAPURA, TONK ROAD, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AACCG 1218 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 948/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. THE DY. COMMISSIONER OF INCOME-TAX, CIRCLE-7, JAIPUR. CUKE VS. M/S. GENUS POWER INFRASTRUCTURES LTD., (PREVIOUSLY KNOWN AS GENUS OVERSEAS ELECTRONICS LTD.), SPL-3, RIICO IND. AREA, SITAPURA, TONK ROAD, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AACCG 1218 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 20/02/2017 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 22/02/2017 2 ITA NOS. 942 & 948/JP/2016. M/S. GENUS POWER INFRASTRUCTURES LTD. VKNS'K@ ORDER PER SHRI KUL BHARAT, J.M. THESE TWO CROSS APPEALS BY THE ASSESSEE AND THE RE VENUE ARE DIRECTED AGAINST THE ORDER OF LD. CIT (A)-III, JAIPUR DATED 19.08.2016 PERTAINING TO A.Y. 2008-09. FIRST, WE TAKE UP THE REVENUES APPEAL IN ITA NO. 948/JP/2016. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT (A) HAS ERRED IN DELETING PENALTY U/S 271(1)(C) ON DISALLOWANCE OF COMMISSION & BROKERAGE AND SERVICE TAX OF RS. 4, 14,72,012/- AND LEGAL & PROFESSION AND CONSULTANCY CHARGE TO M/S. V IDARBHA ELECTRICAL NAGPUR AMOUNTING TO RS. 35 LAC ON THE GROUND THAT T HESE ADDITIONS HAVE BEEN DELETED BY THE ITAT VIDE ITS ORDER DATED 20.05.2016 IN ITA NO. 38/JP/2012 BUT THE DEPARTMENT HAS NOT ACCEP TED THE DECISION OF THE ITAT AND APPEAL BEFORE HONBLE RAJA STHAN HIGH COURT HAS BEEN FILED ON THESE ISSUES. 2) THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, WI THDRAW OR INSERT ANY GROUND OR GROUNDS OF APPEAL BEFORE OR AT THE TI ME OF HEARING OF THE APPEAL. 2. AT THE OUTSET, LD.COUNSEL FOR THE ASSESSEE POINT ED OUT THAT THE HONBLE ITAT WHILE DEALING WITH THE ABOVE GROUNDS IN QUANTU M APPEAL IN ASSESSEES OWN CASE, AFTER DISCUSSING THE MATTER AT GREAT LENG TH, HAS ALLOWED THE CLAIM OF THE ASSESSEE BY DELETING THE ADDITION.THIS FACT IS NOT CONTROVERTED BY THE LD. D/R. WE FIND THAT THE REVENUES GROUND FOR FILING THE APPEAL IS THAT THE 3 ITA NOS. 942 & 948/JP/2016. M/S. GENUS POWER INFRASTRUCTURES LTD. REVENUE HAS NOT ACCEPTED THE DECISION OF THE ITAT R ENDERED IN THE QUANTUM PROCEEDINGS IN ITA NO. 38/JP/2012. 3. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE REVENUE HAS NOT PLACED ANY MATERIAL SU GGESTING THAT THE ORDER PASSED IN QUANTUM APPEAL WAS STAYED OR REJECTED BY THE HONBLE JURISDICTIONAL HIGH COURT. AS THE ADDITION HAS BEEN DELETED BY TH E TRIBUNAL IN QUANTUM PROCEEDINGS, IN OUR CONSIDERED VIEW, PENALTY DOES N OT SURVIVE. THEREFORE, WE DO NOT SEE ANY REASON TO INTERFERE INTO THE ORDER O F LD. CIT (A), THE SAME IS HEREBY UPHELD. 4. NOW, WE TAKE UP ASSESSEES APPEAL. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS GROSSLY ER RED IN CONFIRMING PENALTY U/S 271(1)(C) ON A SUM OF RS. 196,750/- PAI D AS DONATION AND CLAIMED AS DEDUCTION U/S 80G OF THE IT ACT, 1961, W HICH WAS DISALLOWED SOLELY DUE TO NON-FURNISHING OF DOCUMENTS, THOUGH T HE SAME WAS PAID THROUGH PAYEES A/C CHEQUE AND THUS THE SAME DESERV ES TO BE DELETED. 1.1 THAT, LD. CIT (A) FURTHER ERRED IN NOT APPRECIATING THE LEGAL POSITION THAT MERE REJECTION OF DEDUCTION CLAIMED D OES NOT IPSO FACTO RESULTS IN CONCEALMENT OR FURNISHING OF INACC URATE PARTICULARS, PARTICULARLY WHEN IT WAS NOT DISPUTED THAT PAYMENT WAS MADE BY CHEQUE, THUS, THE PENALTY SO CONFIRMED DESERVES TO BE DELETED. 1.2 THAT LD. CIT (A) ERRED IN CONFIRMING THE PENALTY WI THOUT APPRECIATING THE FACT THAT NO SATISFACTION WAS RECO RDED BY ASSESSING OFFICER BEFORE LEVYING PENALTY AND IT WAS LEVIED MERELY 4 ITA NOS. 942 & 948/JP/2016. M/S. GENUS POWER INFRASTRUCTURES LTD. FOR WANT OF DONATION RECEIPTS, THUS LEVY OF PENALTY IS NOT JUSTIFIED AND DESERVES TO BE DELETED. 2. THAT THE APPELLANT CRAVES THE RIGHT TO ADD, DELETE, AMEND OR ABANDON ANY OF THE GROUNDS OF APPEAL EITHER BEFORE OR AT TH E TIME OF HEARING OF APPEAL. THE ONLY EFFECTIVE GROUND IS AGAINST SUSTAINING THE PENALTY OF RS.1,96,750/- MADE IN RESPECT OF CONFIRMATION OF DISALLOWANCE OF DEDUCTION/S 80G OF THE INCOME TAX ACT, 1961. 5. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN BRIEF AND SUBMITTED THAT THE AUTHORITIE S BELOW WERE NOT JUSTIFIED IN IMPOSING PENALTY AND CONFIRMING THE SAME. HE SUBMI TTED THAT THE PAYMENT WAS MADE THROUGH BANKING CHANNEL. IT IS SUFFICIENT TO DEMONSTRATE THAT IT WAS NOT A BOGUS PAYMENT. THE LD. COUNSEL HAS PLACED REL IANCE ON THE DECISION OF THE HONBLE SUPREME COURT RENDERED IN THE CASE OF C IT VS. RELIANCE PETROPRODUCTS PVT. LTD. 36 DTR 449 (SC). 6. ON THE CONTRARY, THE LD. D/R OPPOSED THE SUBMISS IONS. HE SUBMITTED THAT THE ASSESSEE DID NOT FURNISH ANY EVIDENCE SUGG ESTING THAT PAYMENT MADE TO THE INSTITUTION WAS ENTITLED FOR ACCEPTANCE OF D ONATION. UNDER THESE FACTS, THE AUTHORITIES BELOW WERE JUSTIFIED IN LEVYING THE PENALTY. 7. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE MAT ERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE PAYMENT HA S BEEN MADE THROUGH 5 ITA NOS. 942 & 948/JP/2016. M/S. GENUS POWER INFRASTRUCTURES LTD. BANKING CHANNEL. HOWEVER, THERE IS NO MATERIAL SUGG ESTING THAT THE PAYMENT WAS MADE TO THE INSTITUTION WHICH WAS REGISTERED UN DER SECTION 80G OF THE I.T. ACT. IN THE ABSENCE OF THIS VITAL MATERIAL EV IDENCE, THE EXPLANATION OF THE ASSESSEE IS DEVOID OF ANY MERIT. THE GROUND RAISED IN THE APPEAL IS DISMISSED. 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE AND REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/02/20 17. SD/- SD/- HKKXPAN DQY HKKJR (BHAGCHAND) (KUL BHARAT) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22/02/2017. D/ VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S. GENUS POWER INFRASTRUCTURES LTD ., JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO WARD 7(2)/DCIT, CIRCLE-7, J AIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 942 & 948/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR