M/s Purewal & Associates Ltd., Solan v. ACIT, Parwanoo

ITA 12/CHANDI/2011 | 2004-2005
Pronouncement Date: 30-03-2011 | Result: Allowed

Appeal Details

RSA Number 1221514 RSA 2011
Assessee PAN AABVP4601L
Bench Chandigarh
Appeal Number ITA 12/CHANDI/2011
Duration Of Justice 2 month(s) 26 day(s)
Appellant M/s Purewal & Associates Ltd., Solan
Respondent ACIT, Parwanoo
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 30-03-2011
Date Of Final Hearing 29-03-2011
Next Hearing Date 29-03-2011
Assessment Year 2004-2005
Appeal Filed On 04-01-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL: A BENCH: CH ANDIGARH BEFORE SHRI D K SRIVASTAVA AM AND MS. SUSHMA CHOWL A JM ITA NO. 12/CHANDI/2011 ASSESSMENT YEAR: 2004-05 M/S PUREWAL & ASSOCIATES LTD. V. A.C.I.T. CIRCLE PARWANOO JUBBAR KASAULI (SOLAN) PAN: AABVP 4601 L STAY APPLICATION NO. 4/CHANDI/2011 (ARISING IN ITA NO. 12/CHANDI/2011) ASSESSMENT YEAR: 2004-05 M/S PUREWAL & ASSOCIATES LTD. V. A.C.I.T. CIRCLE PARWANOO APPELLANT BY: SHRI NEERAJ JAIN RESPONDENT BY: SHRI S.S. KEMWAL ORDER D K SRIVASTAVA: THE APPEAL AND THE STAY APPLICATION FILED BY THE ASSESSEE WERE LISTED FOR HEARING ON 29.3.2011. THEY WERE HEA RD TOGETHER AND THEREFORE THEY ARE BEING DISPOSED OFF BY A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. IN I.T.A. NO. 12/CHANDI/2011 THE ASSESSEE HAS T AKEN THE FOLLOWING GROUNDS OF APPEAL: 1 THAT THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDIN G THE IMPOSITION OF PENALTY U/S 271(1)(C) OF INCOME-TAX ACT. 2 THAT THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDIN G THE IMPOSITION OF PENALTY U/S 271(1)(C) OF INCOME-TAX ACT WHERE THE D EDUCTION U/S 80IC HAS NOT BEEN ALLOWED ON ACCOUNT OF DEPB. 3. THAT WITHOUT PREJUDICE TO ABOVE THE APPELLANT DISPUTES THE QUANTUM OF PENALTY. 3. IN SUPPORT OF APPEAL THE LD. AUTHORIZED REPRESE NTATIVE FOR THE ASSESSEE FILED A CHART NARRATING THE SEQUENCE OF EVENTS AS U NDER: (1) RETURN OF INCOME WAS FILED ON 29.10.2004 CLAIMI NG DEDUCTION IN RESPECT OF DEPB U/S 80IB. (2) ORIGINAL ASSESSMENT ORDER WAS PASSED U/S 143(3) ON 28.12.2006 DISALLOWING DEDUCTION U/S 80IC ON ACCOUNT OF DEPB A MOUNTING TO RS. 81 75 680/- WHICH ON APPEAL WAS CONFIRMED BY THE CIT(A) VIDE HIS APPELLATE ORDER DATED 15.5.2007. (3) ON FURTHER APPEAL BY THE ASSESSEE BEFORE THIS T RIBUNAL THE ISSUE WAS RESTORED TO THE FILE OF AO IN VIEW OF THE FACT THAT IDENTICAL ISSUE WAS PENDING FOR ADJUDICATION BEFORE THE HON'BLE SUPREME COURT IN LIBERTY INDIA V. CIT 317 ITR 218. THE AFORESAID ORDER WAS PASSED BY THIS TRIBUNAL ON 1.11.2007. ITA NO.12/CHANDI/2011 2 2 (4) SINCE TIME LIMIT FOR PASSING A FRESH ASSESSMENT ORDER IN TERMS OF THE DIRECTIONS GIVEN BY THIS TRIBUNAL WAS ABOUT TO EXPI RE AND THE MATTER WAS STILL PENDING BEFORE THE HONBLE SUPREME COURT THE AO PASSED A FRESH ASSESSMENT ORDER ON 5.2.2008 U/S 143(3) READ WITH S ECTION 254 BY WHICH HE ALLOWED THE DEDUCTION CLAIMED BY THE ASSESSEE U/ S 80IC ON ACCOUNT OF DEPB AMOUNTING TO RS. 81 75 680/- FOLLOWING THE JU DGMENT OF HON'BLE GUJARAT HIGH COURT IN CIT V. INDIA GELATINE & CHEMI CALS LTD 275 ITR 284 (GUJ). (5) THE LD. CIT CALLED FOR THE RECORD AND NOTICED T HAT THE AO HAS NOT CARRIED OUT THE DIRECTIONS GIVEN BY THIS TRIBUNAL A ND THEREFORE INVOKED JURISDICTION U/S 263. BY HIS ORDER DATED 9.7.2009 THE LD. CIT DIRECTED THE AO TO CONSIDER THE CLAIM AFRESH. (6) IN COMPLIANCE WITH THE DIRECTION GIVEN BY LD. C IT U/S 263 THE AO PASSED A FRESH ORDER ON 12.11.2009 U/S 143(3) READ WITH SECTION 263 BY WHICH HE DISALLOWED THE CLAIM OF THE ASSESSEE FOR D EDUCTION U/S 80IC FOLLOWING THE JUDGMENT OF THE HON'BLE SUPREME COURT IN LIBERTY INDIA V. CIT 317 ITR 218 (S.C). (7) THE ASSESSEE ACCEPTED THE ASSESSMENT ORDER PASS ED BY THE AO ON 12.11.2009 AS IT WAS IN CONFORMITY WITH THE JUDGMEN T IN LIBERTY INDIA V. CIT (SUPRA). (8) PURSUANT TO THE PROCEEDING INITIATED BY THE AO FOR LEVY OF PENALTY U/S 271(1)(C) THE AO LEVIED MINIMUM PENALTY AMOUNTING TO RS. 33225/- TREATING THE AFORESAID DISALLOWANCE OF CLAIM FOR DE DUCTION U/S 80IC AS CONCEALMENT OF INCOME. (9) ON APPEAL THE LD. CIT(A) CONFIRMED THE ORDER P ASSED BY THE AO BY WHICH THE AO HAS LEVIED IMPUGNED PENALTY. 4. IN SUPPORT OF APPEAL THE LD. AUTHORIZED REPRESE NTATIVE FOR THE ASSESSEE SUBMITTED THAT AFORESAID SEQUENCE OF EVENTS SHOW DI VERSION OF JUDICIAL OPINION ON THE ISSUE FOR WHICH PENALTY HAS BEEN LEVIED BY THE ASSESSING OFFICER. HIS NEXT SUBMISSION WAS THAT THE ASSESSEE CLAIMED DEDUCTION U/S 80IC IN RESPECT OF DPEB PURSUANT TO THE AUDIT REPORT SUBMITTED BY THE C.A. IN WHICH THE CLAIM OF THE ASSESSEE FOR DEDUCTION WAS CONSIDERED TO BE TENABLE IN LAW. HIS THIRD SUBMISSION WAS THAT THE ASSESSEE HAS MADE FULL AND DUE DISCLOS URE OF ALL THE FACTS MATERIAL TO THE COMPUTATION OF ITS INCOME. HE SUBMITTED THAT TH E AFORESAID SEQUENCE OF EVENTS ALSO SHOW THE BONA-FIDE OF THE ASSESSEE IN C LAIMING THE IMPUGNED DEDUCTION. 5. IN REPLY THE DR SUPPORTED THE ORDER PASSED BY T HE LD. CIT(A). 6. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY CON SIDERED THEIR SUBMISSIONS. IT IS A CASE WHERE THE AO HAS PROCEEDED TO LEVY PEN ALTY U/S 271(1)(C) ON THE ITA NO.12/CHANDI/2011 3 3 BASIS OF DISALLOWANCE OF CLAIM MADE BY THE ASSESSEE U/S 80IC. AT THE TIME WHEN THE RETURN WAS FILED BY THE ASSESSEE MAKING THE IMP UGNED CLAIM THE JUDGMENT OF THE HON'BLE SUPREME COURT WAS NOT AVAILABLE AND THE RE WAS DIVERSION OF JUDICIAL OPINION ON THE ISSUE. THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IC WAS SUPPORTED BY THE AUDIT REPORT FURNISHED BY THE C.A WHO WAS EXPERT IN THE FIELD. THE ASSESSEE HAS MADE FULL AND DUE DISCLOSURE OF AL L THE FACTS MATERIAL TO THE COMPUTATION OF HIS INCOME. MERE REJECTION OR DISALL OWANCE OF CLAIM ON THE ADMISSIBILITY OF WHICH THERE IS DIVERGENCE OF JUDIC IAL OPINION IS NOT BY ITSELF SUFFICIENT TO LEVY PENALTY. NO MATERIAL HAS BEEN PL ACED BEFORE US TO SUGGEST THAT THE CLAIM MADE BY THE ASSESSEE WAS NOT BONA-FIDE OR THAT THE ASSESSEE HAS SUPPRESSED OR CONCEALED ANY FACT MATERIAL TO THE CO MPUTATION OF ITS INCOME. ON THE FACTS OF THE CASE WE ARE OF THE CONSIDERED VIE W THAT THE IMPUGNED PENALTY DESERVES TO BE CANCELLED AND HIS ACCORDINGLY CANCEL LED. APPEAL FIELD BY THE ASSESSEE IS ALLOWED. 7. SINCE WE HAVE ALREADY ALLOWED THE APPEAL FILED B Y THE ASSESSEE THE STAY APPLICATION FILED BY THE ASSESSEE HAS BECOME INFRUC TUOUS. IT SHALL BE TREATED AS DISMISSED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON MARCH 2011 (SUSHMA CHOWLA) (D K SRIVASTAVA) JUDICIAL MEMBER ACCOUNTANT MEMBER CHANDIGARH: THE MARCH 2011 SURESH COPY TO: 1. THE APPELLANT PUREWAL & ASSOCIATES LTD KASAULI 2. THE RESPONDENT A.C.I.T. CIRCLE PARWANOO 3. THE CIT(A) SHIMLA 4. THE LD. CIT SHIMLA 5. THE D.R INCOME-TAX DEPARTMENT CHANDIGARH TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT CHANDIGARH