ITO WD 20(3)(1), MUMBAI v. ENDEEGEE EXPORTS, MUMBAI

ITA 1294/MUM/2010 | 2000-2001
Pronouncement Date: 28-01-2011 | Result: Dismissed

Appeal Details

RSA Number 129419914 RSA 2010
Assessee PAN AAAFE0974F
Bench Mumbai
Appeal Number ITA 1294/MUM/2010
Duration Of Justice 11 month(s) 11 day(s)
Appellant ITO WD 20(3)(1), MUMBAI
Respondent ENDEEGEE EXPORTS, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 28-01-2011
Assessment Year 2000-2001
Appeal Filed On 17-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI J. SUDHAKAR REDDY A.M. AND SHRI V. DU RGA RAO J.M. ITA NO. 1294/M/2010 ASSESSMENT YEAR: 2000-01 INCOME TAX OFFICER APPELLANT WARD 20(3)(1) MUMBAI VS. M/S ENDEEGEE EXPORTS RESPONDENT PLOT NO. 88 ROAD NO. 15 MIDC ANDHERI (E0 MUMBAI 93. (PAN AAAFE 0974 F) APPELLANT BY : MR. VIRENDRA OJHA RESPONDENT BY : MR. SATISH JAIN ORDER PER V. DURGA RAO J.M.: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF CIT(A)- 31 MUMBAI PASSED ON 12/11/2009 FOR THE AS SESSMENT YEAR 2000-01. 2. THE GROUND RAISED BY THE REVENUE IN THIS APPEAL IS AGAINST THE ACTION OF THE CIT(A) IN DELETING THE PENALTY OF RS. 3 25 641/- LEVIED BY THE AO U/S 271(1)(C) OF THE ACT. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF TRADING AS WELL AS MANUFACTURING OF EXPORT OF WOVEN & KNITTED GARMENTS . THE ASSESSEE FILED RETURN OF INCOME FOR THE YEAR UNDER CONSIDERA TION DECLARING TOTAL INCOME OF RS. 47 530/- ON 31/10/2000. THE ASSESEE H AD CLAIMED DEDUCTION U/S U/S 80 HHC OF THE ACT OF RS. 33 87 58 4/- AND ITA NO. 1294 /M/10 ENDEEGEE EXPORTS. 2 DEDUCTION U/S 80IB OF RS. 10 18 351/-. THE ASSESSME NT WAS COMPLETED U/S 143(3) OF THE ACT DETERMINING TOTAL I NCOME OF ASSESSEE AT RS. 43 52 280/- AFTER MAKING VARIOUS DISALLOWANC ES BY REJECTING CLAIM OF DEDUCTIONS. THE ISSUE TRAVELED UPTO THE IT AT AND THE ITAT IN ITA NOS. 1811 & 1812/MUM/2003 VIDE ITS ORDER DATED 25/09/06 RESTORED THE ISSUE OF DEDUCTION U/S 80HHC BACK TO T HE FILE OF THE AO TO CONSIDER AFRESH AND ISSUE OF DEDUCTION U/S 80IB WAS DIRECTED TO BE RECOMPUTED. HOWEVER THE ITAT HAD CONFIRMED THE ADD ITION MADE BY THE AO RELATED TO QUOTA PREMIUM RECEIVED BY THE ASS ESSEE AMOUNTING TO RS. 5 12 880/-ON THE GROUND THAT THE QUOTA PREMI UM RECEIVED BY THE ASSESSEE SHOULD NOT BE CONSIDERED U/S 80IB OF T HE ACT. 4. THE SUBJECT MATTER OF THE PRESENT APPEAL IS RELA TING TO THE PENALTY IMPOSED BY THE AO WITH REGARD TO THE DEDUCT ION U/S 80 IB IN RESPECT OF QUOTA PREMIUM RECEIVED BY THE ASSESSEE A MOUNTING TO RS. 5 12 880/-.THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AGAINST THE SAID ADDITION AND LEVIED PENALTY OF RS. 3 25 641/- U/S 271(1)(C) ON THE GROUND THAT THE ASSESSEE HAS CONCE ALED ITS PARTICULARS OF INCOME. AGGRIEVED THE ASSESSEE CARR IED THE MATTER IN APPEAL BEFORE THE CIT(A). AFTER CONSIDERING THE THE SUBMISSIONS OF THE ASSESSEE THE CIT(A) DELETED PENALTY BY OBSERVING T HAT THE ISSUE IS DEBATABLE AND VARIOUS HIGH COURTS HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE CIT(A) ALSO OBSERVED THAT THE ASS ESSEE HAS NOT FURNISHED INACCURATE PARTICULARS OF ITS INCOME AS A LL THE BASIC MATERIALS WERE DISCLOSED. 5. AGGRIEVED BY THE ORDER OF CIT(A) THE REVENUE IS IN APPEAL BEFORE THE ITAT. 6. THE LEARNED DR BESIDES RELYING ON THE ORDER OF T HE AO CONTENDED THAT THE CIT(A) HAS ERRED ON FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE IN NOT APPRECIATING THE F ACT THAT THE ASSSESSEE CLAIMED DEDUCTION U/S 80IB ON INCOME/RECE IPT FROM EXPORT ITA NO. 1294 /M/10 ENDEEGEE EXPORTS. 3 QUOTA PREMIUM AND REDUCED THE TAXABLE INCOME IS CLE ARLY A MALAFIDE ACT ON THE PART OF THE ASSESSEE. THEREFORE HE SUBM ITTED THAT THE AO HAS RIGHTLY LEVIED PENALTY U/S 271(1)(C) OF THE ACT . 7. ON THE OTHER HAND THE LEARNED COUNSEL FOR THE A SSESSEE HAS PLACED RELIANCE ON THE ORDER OF THE CIT(A) AND SUBM ITTED THAT THE CIT(A) AFTER EXAMINING THE ENTIRE FACTS OF THE CASE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING THAT THIS ISSUE I S A DEBATABLE ONE AND VARIOUS HIGH COURTS CONSIDERED THE ISSUE IN FAV OUR OF THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT. LTD . 332 ITR 158 (SC). 8. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES PERUSED RECORD AND GONE THROUGH THE ORDERS OF THE A UTHORITIES BELOW. THE ISSUE UNDER CONSIDERATION IN THIS APPEAL IS WHE THER THE AO IS RIGHT IN LEVYING PENALTY U/S 271(1)(C) ON THE GROUN D THAT THE ASSESEE HAS CONCEALED ITS PARTICULARS OF INCOME IN RESPECT OF CLAIM OF QUOTA PREMIUM. WE FIND THAT THE MATTER TRAVELED UP TO ITA T AND THE ITAT HAD CONFIRMED THE ADDITION MADE BY THE AO IN RESPEC T OF THE QUOTA PREMIUM ON THE GROUND THAT THE QUOTA PREMIUM RECEIV ED BY THE ASSSESEE SHOULD NOT BE CONSIDERED U/S 80IB. WE FIN D THAT THE CIT(A) GAVE A CATEGORICAL FINDING THAT THE ASSESSEE HAS FU RNISHED ALL THE PARTICULARS IN RESPECT OF THE ABOVE CLAIM AND HIS F URTHER FINDING WAS THAT THE ISSUE IS DEBATABLE ONE AND VARIOUS HIGH CO URTS HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THEREFORE IT C ANNOT BE SAID THAT THE ASSESSEE HAS CONCEALED ITS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. IN THE CASE OF RELIANCE PETR O PRODUCTS PVT. LTD. (SUPRA) ON WHICH RELIANCE PLACED BY THE ASSESSEE THE HONBLE SUPREME COURT HELD THAT A MERE MAKING OF A CLAIM WHICH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO F URNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. S UCH A CLAIM MADE IN THE RETURN OF INCOME CANNOT AMOUNT TO FURNISHING IN ACCURATE PARTICULARS. IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE SUPRE ME ITA NO. 1294 /M/10 ENDEEGEE EXPORTS. 4 COURT IN THE SAID CASE IT IS CLEAR THAT MERE MAKIN G A CLAIM CANNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS AND TH EREFORE WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) IN DELETING THE PENALTY OF RS. 3 25 691/- LEVIED BY THE AO U/S 271(1)(C) IN RESPEC T OF THE CLAIM OF QUOTA PREMIUM CLAIMED BY THE ASSESSEE U/S 80IB OF T HE ACT. 9. IN THE RESULT THE APPEAL OF THE REVENUE IS DIS MISSED. PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF JANUARY 2011. SD/- SD/- (J. SUDHAKAR REDDY) (V. DURGA RAO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI DATED: 28 TH JANUARY 2011. COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE E BENCH I.T .A.T. MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR I.T.A.T. MUMBAI . KV ITA NO. 1294 /M/10 ENDEEGEE EXPORTS. 5 S.NO. DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON 27/01/11 SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR 28/01/11 SR.P.S/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER