MANOJ KUMAR JOHARI, Sikar V. ACIT, Sikar

ITA 962/JPR/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5203 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 06-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA JCIT DHK
• Assessee Lawyers: G G MUNDRA
• Keywords: Business income; Earning of tax free income; Wrong claim
• Section: 143(3); 10B

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 DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 962/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. SHRI MANOJ KUMAR JOHARI, PROP. M/S. THE ART PLACE, SIKAR. CUKE VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE, SIKAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADWPJ 8870 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI G.G. MUNDRA (CA) JKTLO DH VKSJ LS@ REVENUE BY : MS. ROSHANTA MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 11.05.2016. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13/06/2016. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (APPEALS)- III, JAIPUR DATED 05.09.2013 PERTAINING TO ASSESSME NT YEAR 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APPEAL :- THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) IS WRONG, UNJUST AND HAS ERRED IN LAW IN CONFIR MING PENALTY OF RS. 24,20,000/- IMPOSED BY THE LD. ASSESSING OFFICER U/ S 271(1)(C) OF THE I.T. ACT, 1961. 2. BRIEFLY STATED THE FACTS ARE THAT WHILE FRAMING THE ASSESSMENT UNDER SECTION 143(3) OF THE IT ACT, 1961, THE AO MADE DISALLOWANC E OF DEDUCTION UNDER SECTION 10BA OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). THE AO ALSO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT AND SUBSEQUENTLY IMPOSED PENALTY UNDER SECTION 271(1)(C) OF THE ACT VIDE ORD ER DATED 18 TH MARCH, 2013. THE 2 ITA NO. 962/JP/2013 SHRI MANOJ KUMAR JOHARI ASSESSEE AGGRIEVED BY THIS PENALTY, FILED AN APPEAL BEFORE LD. CIT (A) WHO AFTER CONSIDERING THE SUBMISSIONS, DISMISSED THE APPEAL. 3. NOW THE ASSESSEE IS FURTHER IN APPEAL BEFORE THE TRIBUNAL. 3.1. THE LD. COUNSEL FOR THE ASSESSEE REITERATED TH E SUBMISSIONS AS ARE MADE IN THE WRITTEN SUBMISSIONS AND SUBMITTED THAT THE AUTH ORITIES BELOW WERE NOT JUSTIFIED IN IMPOSING PENALTY AND CONFIRMING THE SAME. THE L D. COUNSEL SUBMITTED THAT MERELY BECAUSE A CLAIM MADE BY THE ASSESSEE WAS DIS ALLOWED BY THE ASSESSING AUTHORITY, WOULD NOT IPSO FACTO MAKE THE ASSESSEE L IABLE FOR PENALTY UNDER SECTION 271(1)(C) OF THE ACT. HE SUBMITTED THAT PENALTY PR OCEEDINGS AND THE ASSESSMENT PROCEEDINGS ARE TWO DIFFERENT AND DISTINCT PROCEEDI NGS. IN THE PRESENT CASE, THE CONDITIONS AS ENVISAGED UNDER THE LAW FOR IMPOSING PENALTY ARE NOT SATISFIED. HE PLACED RELIANCE ON THE JUDGMENT OF THE HONBLE SUPR EME COURT RENDERED IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS P. LTD. 322 ITR 1 58 (SC). HE SUBMITTED THAT SO FAR CLAIM OF DEDUCTION UNDER SECTION 10BA IS CONCERNED, THE ISSUE WAS DEBATABLE AS PRIOR TO THE JUDGMENT OF HONBLE SUPREME COURT REND ERED IN THE CASE OF LIBERTY INDIA VS. CIT, 317 ITR 218 (SC). THE LD. COUNSEL P LACED RELIANCE ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE I NCOME TAX APPEAL NO. 7/2015. THE LD. COUNSEL PLACED RELIANCE ON THE JUDGMENT OF HONBLE PUNJAB & HARYANA HIGH COURT RENDERED IN THE CASE OF PRINCIPAL CIT VS. S.S . FOOD INDUSTRIES, 382 ITR 388 (P&H) TO BUTTRESS THE CONTENTION THAT THE ISSUE WAS DEBATABLE. 3.2. ON THE CONTRARY, THE LD. D/R SUPPORTED THE ORD ERS OF THE AUTHORITIES BELOW AND CONTENDED THAT POST JUDGMENT OF HONBLE SUPREME COURT, THE LAW IS WELL SETTLED THAT DUTY DRAW BACK/DEPB DO NOT FORM PART OF INDUST RIAL UNDERTAKING FOR THE PURPOSE 3 ITA NO. 962/JP/2013 SHRI MANOJ KUMAR JOHARI OF SECTION 80IA,80IB AND 10BA OF THE ACT. THE ASSE SSEE FILED HIS RETURN OF INCOME POST JUDGMENT OF HONBLE SUPREME COURT. 3.3. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. THE CONTENTION OF THE ASSESSEE IS THAT THE AUTHORITIES BELOW WERE NOT JUS TIFIED IN VIEW OF THE FACT THAT THE ISSUE OF ELIGIBILITY OF DEDUCTION UNDER SECTION 10B A WAS DEBATABLE SINCE THERE WERE CONFLICTING JUDGMENTS ON THIS POINT. HOWEVER, THE P OSITION WAS SETTLED BY THE JUDGMENT OF HONBLE SUPREME COURT RENDERED IN THE C ASE OF LIBERTY INDIA (SUPRA). THE LD. CIT (A) HAS NOT ACCEPTED THE CONTENTION AND DECIDED THE ISSUE IN PARA 4.3 OF HIS ORDER BY OBSERVING AS UNDER :- 4.3. I HAVE CAREFULLY CONSIDERED THE SUBMISSION O F THE APPELLANT AS ALSO THE FINDINGS OF THE AO IN RESPECT OF IMPOSITI ON OF PENALTY. IT MAY BE NOTED THE AO HAS IMPOSED PENALTY U/S 271(1)(C) O F I.T. ACT AMOUNTING TO RS. 24.20 LACS ON ACCOUNT OF REJECTION OF CLAIM OF 10BA OF I.T. ACT ON ACCOUNT OF DUTY DRAW BACK AND DEPB RECE IPT NOT BEING CONSIDERED TO BE BUSINESS RECEIPTS. THE ADDITION O N THIS ACCOUNT WAS ALSO CONFIRMED BY THE 1 ST APPELLATE AUTHORITY. THE AOS CASE IS THAT WITH THE DECISION OF HONBLE SUPREME COURT IN THE C ASE OF LIBERTY INDIA VS. CIT, 317 ITR 218 THE RECEIPTS ON ACCOUNT DEPB A ND DUTY DRAW BACK CAN NOT BE TREATED AS BUSINESS RECEIPTS AND THEREFO RE THESE RECEIPTS CANNOT BE PART OF PROFITS FOR CLAIM UNDER SECTION 1 0BA OF I.T. ACT. THE AO ACCORDINGLY HELD THAT BY MAKING SUCH CLAIM THE A PPELLANT FURNISHED INACCURATE PARTICULARS OF INCOME AND THEREFORE LIAB LE TO PENALTY U/S 271(1)(C) OF I.T. ACT. ON THE OTHER HAND THE APPELL ANT CASE THAT SUCH CLAIM WAS MADE IN BONAFIDE MANNER AT THE TIME OF FI LING OF RETURN ON 23.09.2009 AND THAT AS PER THE EXISTING DECISION OF THE VARIOUS COURTS SUCH RECEIPTS ON ACCOUNT OF DEPB AND DUTY DRAW BACK WERE TREATED TO BE PART OF BUSINESS RECEIPTS AND CONSIDERED ELIGIBL E FOR DEDUCTION U/S 10BA OF IT ACT. IT WAS ALSO STATED THAT THE DECISIO N OF HONBLE SUPREME COURT IN THE CASE OF LIBERTY INDIA VS. CIT, SUPRA W AS DELIVERED ON 31.08.2009 AND THAT IT IS ONLY AFTER THE DECISION O F HONBLE SUPREME COURT, SUCH CLAIM IS HELD NOT ELIGIBLE FOR DEDUCTIO N U/S 10BA OF IT ACT. IT IS ACCORDINGLY CONTENDED THAT WHEN THE RETURN WA S FILED THERE WAS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURAT E PARTICULARS OF INCOME. IT IS ALSO STATED THAT SUCH CLAIM WAS SUPPO RTED BY THE STATUTORY AUDITORS. ANOTHER JUSTIFICATION FOR NOT I MPOSITION OF PENALTY U/S 271(1)(C) OF I.T. ACT BY THE APPELLANT IS THAT WHETHER THE RECEIPTS 4 ITA NO. 962/JP/2013 SHRI MANOJ KUMAR JOHARI ON ACCOUNT OF DEPB/DUTY DRAW BACK SHOULD BE PART OF BUSINESS RECEIPTS IS ALWAYS A DEBATABLE ISSUE IN AS MUCH AS BEFORE TH E DECISION OF HONBLE SUPREME COURT IN THE LIBERTY INDIA VS. CIT, VARIOUS COURTS INCLUDING THE JURISDICTION HIGH COURT IN THE CASE O F SARAF SEASONING UDYOG VS. ITO, (2009) 317 ITR 207 HAS HELD SUCH REC EIPTS TO BE PART OF BUSINESS PROFIT AND THAT IN THE DEBATABLE ISSUE NO PENALTY U/S 271(1)(C) CAN BE IMPOSED. FOR SUCH PROPOSITION THE APPELLANT HAS ALSO RELIED CERTAIN CASE LAWS AS MENTIONED IN THE WRITTE N SUBMISSION. THE APPELLANT HAS ALSO RELIED ON THE DECISION OF HONBL E SUPREME COURT IN THE CASE OF RELIANCE PETRO PRODUCTS PVT. LTD. VS. C IT 312 ITR 198 WHEREIN THE HONBLE COURT HAS HELD THAT MERE MAKING A CLAIM WHICH IS NOT SUSTAINABLE IN LAWS IT SELF WILL NOT AMOUNT TO FURNISHING OF INACCURATE PARTICULARS OF INCOME. ON CAREFUL CONSIDERATION OF RELEVANT FACTS IT MAY B E STATED THAT AS REGARDS THE CONTENTION OF THE APPELLANT THAT MALAFI DE INTENTION/MENS REA IS TO BE PROVED FOR IMPOSITION OF PENALTY, THE HONBLE SUPREME COURT IN ITS SUBSEQUENT DECISION IN THE CASE OF UNI ON OF INDIA VS. DHARMENDRA TEXTILE PROCESSOR (2008) 306 ITR 277 HEL D THAT PENALTY U/S 271(1)(C) OF IT ACT INDICATED AN ELEMENT OF STR ICT LIABILITY ON THE ASSESSEE FOR CONCEALMENT OR FOR GIVING INACCURATE P ARTICULARS WHILE FILING THE RETURN AND THERE WAS NO NECESSITY OF MEN S REA. HOWEVER, THE HONBLE COURT ALSO HELD THAT BASIC CONDITION OF FURNISHING OF INACCURATE PARTICULAR OF INCOME OR CONCEALMENT OF I NCOME SHOULD BE FULFILLED BEFORE IMPOSITION OF PENALTY U/S 271(1)(C ) OF IT ACT. THE FACTS AND CIRCUMSTANCES OF THE APPELLANT CASE ARE TO BE E XAMINED AS TO WHETHER SUCH ESSENTIAL CONDITIONS OF FURNISHING OF INACCURATE PARTICULARS OF INCOME FOR CONCEALMENT OF INCOME ARE FULFILLED O R NOT. IT MAY BE NOTED THAT THE ISSUE AS TO WHETHER THE RECEIPTS ON ACCOUNT OF DUTY DRAW BACK/DEPB SHOULD BE PART OF THE BUSINESS PROFI T FOR COMPUTING DEDUCTION U/S 10BA/80IB WAS DEFINITELY A DEBATABLE ISSUE TILL THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF LI BERTY INDIA VS. CIT (2009) 317 ITR 218. THE HONBLE SUPREME COURT DELIV ERED THE DECISION ON 31.08.2009 AND IN THE JUDGMENT THE HONBLE COURT HAS VERY CLEARLY HELD THAT THE DUTY DRAW BACK RECEIPTS/DEPB BENEFITS DO NOT FORM PART OF THE NET PROFIT OF ELIGIBLE INDUSTRIAL UNDERTAKIN G FOR THE PURPOSE OF SEC.80I/80IA/80IB OF IT ACT. THEREFORE, WITH THE D ECISION OF THE APEX COURT THERE REMAINED NO DISPUTE OR DEBATABLE POINT ON THIS ISSUE. IT MAY ALSO BE NOTED THAT THE ASSESSEE HAS FILED HIS R ETURN OF INCOME ON 23.09.2009 I.E. SUBSEQUENT TO THE DECISION OF HONB LE SUPREME COURT IN THE CASE OF LIBERTY INDIA VS. CIT (SUPRA) AND IN SUCH RETURN OF INCOME DEDUCTION WAS CLAIMED ON ACCOUNT OF INCOME F ROM DUTY DRAW BACK/DEPB. IN FACT THE SUBMISSION OF THE APPELLANT IS FACTUALLY INCORRECT IN RESPECT OF THE FACT THAT THE RETURN OF THE INCOM E FOR A.Y. 2008-09 HAS BEEN FILED BEFORE THE DECISION OF THE HONBLE S UPREME COURT IN AS MSUCH AS THE RETURN OF INCOME HAS BEEN FILED AFTER THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF LIBERTY INDIA VS. CIT, THE CLAIM OF 5 ITA NO. 962/JP/2013 SHRI MANOJ KUMAR JOHARI DEDUCTION ON THE RECEIPTS FROM DEPB/DUTY DRAW BACK WAS DEFINITELY NOT ALLOWABLE. ALL THESE FACTS WERE BEFORE THE APPELLAN T WHEN THE RETURN OF INCOME WAS FILED AND KNOWING VERY WELL THAT WITH TH E DECISION OF THE HONBLE SUPREME COURT SUCH RECEIPTS FROM DEPB/DUTY DRAW BACK CAN NOT FORM PART OF ELIGIBLE PROFITS U/S 80IA, 80IB, 1 0BA ETC., THE APPELLANT CLAIMED SUCH RECEIPTS AS EXEMPT INCOME U/S 10BA AND ACCORDINGLY MADE A WRONG CLAIM IN THE RETURN OF INCOME. IN THIS BACKGROUND BY MAKING SUCH INTENTIONAL WRONG CLAIM THE APPELLANT D EFINITELY FURNISHED INACCURATE PARTICULARS OF HIS INCOME. IT MAY BE STA TED THAT IT IS NOT A CASE OF MERE CLAIM OF THE ASSESSEE BEING REJECTED B UT IT IS A CASE OF WRONG CLAIM BEING MADE BY THE APPELLANT. ON SUCH CL AIM THE DECISION OF THE HONBLE SUPREME COURT THERE WAS NO DOUBT OR ANY ISSUE OF DEBATABLE NATURE AND IN SUCH CIRCUMSTANCES THE APPE LLANT HAS DEFINITELY FURNISHED INACCURATE PARTICULARS BY MAKI NG SUCH CLAIM. FOR SUCH FINDINGS RELIANCE IS ALSO PLACED ON THE FOLLOW ING CASE LAWS : I) PREM PRAKASH GUPTA VS. ITO (2012) 25 TAXMAN.COM 447 13 ITR (TRIB.) 334 (ITAT CHANDIGARH) II) ASST CIT VS. SUNDAR LAL CHOPRA (2010) 2 ITR (TRIB) 790 (DELHI) III) GUJRAT STATE FINANCIAL SERVICES LTD. VS. ACIT (2010) 39 SOT 570 (AHMEDABAD) IV) SHYOURAJSINGH B. CHAUHAN VS ASST. CIT (2010) SOT 45 3 (AHD) V) CIT VS. ZOOM COMMUNICATION P VT. LTD. REPORTED IN ( 2010) 327 ITR 510. THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTANCES THE A.O. HAS RIGHTLY IMPOSED SUCH PENALTY AMOUNTING TO RS. 24,20,000/- U /S 271(C) OF IT ACT. THE ACTION OF THE A.O. IS CONFIRMED AND GROUND OF APPEAL IS DISMISSED. THE CASE OF THE ASSESSEE IS THAT THE ISSUE OF ELIGI BILITY OF DEDUCTION WAS A DEBATABLE ISSUE AND THE ASSESSEE HAD DISCLOSED ALL MATERIAL F ACTS IN HIS RETURN OF INCOME. THEREFORE, THE ASSESSEE CANNOT BE HELD LIABLE FOR C ONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE COORDINATE BENCH IN THE CASE OF ITO VS. FLORA EXPORTS IN ITA NO. 4147/DEL/2009 ON T HE IDENTICAL FACTS DISMISSED THE PENALTY BY OBSERVING AS UNDER :- 6 ITA NO. 962/JP/2013 SHRI MANOJ KUMAR JOHARI 8. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS A ND GONE THROUGH THE RECORDS CAREFULLY. THERE IS NO DISPUTE ON FACTS THAT ASSESSES HAVE DISCLOSED COMPLETE DETAILS OF THEIR CLAIMS IN THE R ETURNS OF INCOME. THE ASSESSES HAVE MADE THEIR CLAIMS ON THE BASIS OF AD VISE GIVEN BY THE EXPERT ON THE SUBJECT. THE AUDIT REPORT AND THE CLA IM IN NECESSARY PROFORMA WERE SUBMITTED ALONG WITH THE RETURNS. FRO M PERUSAL OF THE RECORD, IT REVEALED THAT CLAIM OF THE ASSESSES WERE BONA FIDE CLAIM THERE WERE LARGE NUMBERS OF ORDERS AT THE END OF TH E TRIBUNAL IN FAVOUR OF THE ASSESSES. THE ISSUE WHETHER DEDUCTION UNDER S. 80-IB WOULD BE ADMISSIBLE ON DUTY DRAW BACK AND DEPB IS STILL A DE BATABLE ISSUE. THERE ARE DIVERGENT OPINIONS ON THIS ISSUE BY THE D IFFERENT HONBLE HIGH COURTS. THE HONBLE DELHI HIGH COURT IS OF THE OPIN ION THAT DEDUCTION UNDER S. 80-IB WOULD BE ADMISSIBLE ON DUTY DRAWBACK AND DEPB. IN THE CASE OF LAKHVINDER SINGH IN ITA NO. 5169/DEL/20 04 DECIDED ON 28 TH SEPT., 2005, THEN IN THE CASE OF ASSTT. CIT VS. VIP IN SARDHANA IN ITA NO. 5174/DEL/2004 DECIDED ON 17 TH JUNE, 2005 AND AGAIN IN THE CASE OF ITO VS. ESS KAY ENTERPRISES, TRIBUNAL DELHI BENC HES HAVE ALLOWED THE DEDUCTION TO THE ASSESSEE UNDER S. 80-IB ON DUT Y DRAWBACK. HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF LIBERTY INDIA (SUPRA) HAS HELD THAT DEDUCTION UNDER S. 80-IB WOUL D NOT BE ADMISSIBLE TO THE ASSESSEE. THE SLPS HAVE BEEN FILED AGAINST T HE DECISIONS OF HONBLE PUNJAB & HARYANA HIGH COURT AS WELL AS AGAI NST THE DECISIONS OF HONBLE DELHI HIGH COURT IN THE HONBLE SUPREME COURT WHICH ARE STAND ADMITTED AS INFORMED BY THE LEARNED REPRESENT ATIVE OF THE ASSESSEE. THUS, PRIMA FACIE, IT INDICATES THAT THI S ISSUE WAS A DEBATABLE ONE. HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. BUDHEWAL CO-OPERATIVE SUGAR MILLS (SUPRA) H AS HELD THAT IF AN ASSESSEE HAS MADE A BONA FIDE CLAIM ON THE BASIS OF LAW LAID DOWN BY VARIOUS HONBLE HIGH COURTS THEN PENALTY WOULD NOT BE LEVIED UPON SUCH AN ASSESSEE MERELY ON THE GROUND THAT HIS CLAI M WAS DISALLOWED. SIMILARLY, THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. HARSHVARDHAN (SUPRA) HAS HELD THAT IF AN ASSESSEE C LAIMS SOME DEDUCTIONS WHICH ARE DEBATABLE THEN IT COULD NOT BE SAID THAT ASSESSEE HAS CONCEALED ANY INCOME OR FURNISHED INACCURATE PA RTICULARS OF INCOME WHICH EXPOSED HIM WITH THE PENALTY PROCEEDINGS UNDE R S. 271(1)(C) OF THE ACT. SIMILARLY, HONBLE PUNJAB & HARYANA HIGH C OURT IN THE CASE OF CIT VS. TEK RAM (SUPRA) HAS CONSIDERED THIS ISSUE. IN THIS CASE, ASSESSEE DID NOT SHOW ENHANCED COMPENSATION RECEIVE D BY HIM ON ACCOUNT OF ACQUISITION OF HIS LAND AS HIS INCOME. T HE AO MADE THE ADDITION AND LEVIED PENALTY UNDER S. 271(1)(C). HON BLE COURT HAS HELD THAT MATTER RELATING TO TAXABILITY OF ENHANCED COMP ENSATION RECEIVABLE BY THE ASSESSEE WAS STILL IN DISPUTE AND TWO VIEWS WERE CLEARLY POSSIBLE AND, THEREFORE, NO PENALTY CAN BE IMPOSED. IN THE P RESENT APPEALS ALSO, TWO VIEWS WERE CLEARLY POSSIBLE WHICH WERE SU PPORTED BY ORDERS OF THE TRIBUNAL AS WELL AS DECISIONS OF HONBLE HIG H COURTS. IN SUCH SITUATION, IT CANNOT BE SAID THAT ASSESSES HAVE CON CEALED INCOME OR FURNISHED INACCURATE PARTICULARS. THERE IS NO ALLEG ATION BY THE AO THAT 7 ITA NO. 962/JP/2013 SHRI MANOJ KUMAR JOHARI ASSESSES HAVE NOT DISCLOSED THE COMPLETE PARTICULAR S. THE ONLY ALLEGATION IS THAT ASSESSES HAVE CLAIMED DEDUCTION ON DEPB AND DUTY DRAWBACK UNDER S. 80-IB WHICH IS NOT ADMISSIBLE TO THEM. IN THE CASE IN HAND, THE JUDGMENT OF HONBLE SUPREM E COURT WAS FIRST TIME PUBLISHED ON 17 TH SEPTEMBER, 2009. HOWEVER, THE RETURN WAS FILED SU BSEQUENT TO THE JUDGMENT OF THE HONBLE SUPREME COURT I.E. ON 23 RD SEPTEMBER, 2009. ALL THE MATERIAL FACTS WERE DULY DISCLOSED BY THE ASSESSEE IN ITS RETURN OF INCOME. THE REVENUE HAS NOT DISPUTED THIS FACT. THE ASSESSEE UN DER THE BONA FIDE BELIEF WAS OF THE VIEW THAT IT WAS ELIGIBLE FOR DEDUCTION UNDER S ECTION 10BA OF THE ACT. UNDER THESE FACTS, WHEN REVENUE HAS NOT POINTED OUT THE D ELIBERATE ACT ON THE PART OF THE ASSESSEE WHICH DEMONSTRATES FURNISHING OF INACCURAT E PARTICULARS OR CONCEALMENT OF MATERIAL FACTS, WE ARE OF THE CONSIDERED VIEW THAT IN THE LIGHT OF THE JUDGMENT OF THE HONBLE SUPREME COURT AND THE OTHER CASE LAWS RELIE D BY THE ASSESSEE, AO WAS NOT JUSTIFIED IN LEVYING THE PENALTY UNDER SECTION 271( 1)(C) OF THE ACT. HENCE WE DIRECT THE AO TO DELETE THE PENALTY. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 13/06/201 6. SD/- SD/- FOE FLAG ;KNO ( DQY HKKJR ) (VIKRAM SINGH YADAV) ( KUL BHART ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 13/06/2016. DAS/ 8 ITA NO. 962/JP/2013 SHRI MANOJ KUMAR JOHARI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI MANOJ KUMAR JOHARI, JAIPUR. 2. THE RESPONDENT- THE ACIT, CIRCLE, SIKAR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 962/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR