Thomson Press (India) Limited, New Delhi v. ACIT, New Delhi

ITA 1705/DEL/2009 | 1994-1995
Pronouncement Date: 08-03-2011 | Result: Allowed

Appeal Details

RSA Number 170520114 RSA 2009
Assessee PAN AABCT4827F
Bench Delhi
Appeal Number ITA 1705/DEL/2009
Duration Of Justice 1 year(s) 10 month(s) 11 day(s)
Appellant Thomson Press (India) Limited, New Delhi
Respondent ACIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 08-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 08-03-2011
Date Of Final Hearing 04-04-2011
Next Hearing Date 04-04-2011
Assessment Year 1994-1995
Appeal Filed On 27-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL NEW DELHI BENCH NEW DELHI BENCH NEW DELHI BENCH NEW DELHI BENCH H HH H BEFORE SHRI A. D. JAIN JUDICIAL MEMBER AND SHRI K. D. RANJAN ACCOUNTANT MEMBER ITA NO. 1704 AND 1705 /DEL/2009 (ASSESSMENT YEAR 1993-94 AND 1994-95) THOMSON PRESS (INDIA) LTD. VS. ACIT CO. CIRCLE 1 6(1) K-9 CONNAUGHT CIRCUS NEW DELHI NEW DELHI. (APPELLANTS) (RESPONDENTS) PAN / GIR NO. AABCT4827F APPELLANT BY: SHRI SALIL AGGARWAL ADV. SHRI SHAILESH GUPTA C.A. RESPONDENT BY: SHRI K RAVI RAMA CHANDRAN SR. DR ORDER ORDER ORDER ORDER PER K. D. RANJAN AM: PER K. D. RANJAN AM: PER K. D. RANJAN AM: PER K. D. RANJAN AM: 1. THESE APPEALS BY THE REVENUE FOR THE ASSESSMENT YEARS 1993- 94 AND 1994-95 ARISE OUT OF SEPARATE ORDERS OF LD. CIT(A) XIX NEW DELHI. THESE APPEALS WERE HEARD TOGETHER AND FOR T HE SAKE OF CONVENIENCE ARE BEING DISPOSED OFF BY THIS COMMON ORDER. EXCEPT DIFFERENCE IN FIGURES THE GROUNDS RAISED ARE IDENT ICAL IN BOTH THE ASSESSMENT YEARS. 2. THE RELEVANT GROUNDS OF APPEAL FOR THE ASSESSMEN T YEAR 1993- 94 ARE REPRODUCED AS UNDER: 2(A) THAT THE LD. CIT(A) HAS GONE WRONG IN NOT CON SIDERING THE FACT THAT THE LD. ASSESSING OFFICER HAS LEVIED PENALTY OF ` 46 00 000/- WITHOUT MENTIONING IN THE NOTICE THE GR OUNDS OR REASONS FOR LEVYING THE PENALTY AND STARTED THE OR DER BY TREATING THE SAME AS SUBMISSION OF INACCURATE PARTI CULARS AND CONCLUDED AS CONCEALMENT OF INCOME; 2(B) THAT THE LD. CIT(A) HAS GONE WRONG IN NOT CONS IDERING THE FACT THAT THE LD. ASSESSING OFFICER HAS LEVIED PENALTY OF ` 46 00 000/- WITHOUT MENTIONING IN THE NOTICE THE RE LEVANT I.T.A.NO. 1704 1705/DEL/2010 2 CLAUSE OF SECTION 271(1)(C) BASED ON WHICH THE PENA LTY WAS SOUGHT TO BE LEVIED THEREBY NOT PROVIDING ANY OPPO RTUNITY TO THE ASSESSEE OF EXPLAINING HIS CASE; 2. THE ONLY ISSUE FOR CONSIDERATION WHICH IS COMMON IN BOTH THE APPEALS RELATE TO CONFIRMATION OF PENALTY U/S 271(1 )(C) OF THE ACT AT ` 46 LACS IN ASSESSMENT YEAR 1993-94 AND ` 60 LACS IN ASSESSMENT YEAR 1994-95. THE FACTS STATED IN BRIEF ARE THAT THE ASSESSEE IN THE RELEVANT ASSESSMENT YEARS WAS ENGAGED IN THE ACTIVI TY OF PRINTING. THE ASSESSEE HAS TWO UNITS ONE AT NOIDA EXPORT PRO CESSING ZONE (NEPZ) AND ANOTHER AT FARIDABAD. THE PROFITS FROM NEPZ UNIT WERE ELIGIBLE FOR EXEMPTION U/S 10A AND THE PROFITS EARN ED FROM FARIDABAD UNIT WERE TAXABLE. FARIDABAD UNIT WAS THE HEAD OFF ICE OF THE COMPANY. THE ASSESSEE PAID INTEREST OF ` 79 46 380 /- IN THE ASSESSMENT YEAR 1993-94 AND ` 1 02 82 883/- IN THE ASSESSMENT YEAR 1994-95 TO NEPZ NOIDA UNIT. THIS INTEREST WAS CLAIMED AS EXPENDITURE AND LED TO LESSER TAXABLE PROFIT OF FAR IDABAD UNIT. THE ASSESSING OFFICER IN THE ASSESSMENT YEARS UNDER CON SIDERATION DISALLOWED THE CLAIM OF THE ASSESSEE. ON APPEAL L D. CIT(A) UPHELD THE STAND OF THE ASSESSING OFFICER. LD. CIT(A) WHI LE CONFIRMING THE STAND OF THE ASSESSING OFFICER OBSERVED THAT THE IN TEREST COULD NOT BE REDUCED FROM TOTAL INCOME AND CONSEQUENTLY IT CO ULD NOT CONSTITUTE THE INCOME OF NEPZ UNIT. THEREFORE THE RE WAS NO QUESTION OF EXEMPTION U/S 10A OF THE ACT. ON FURTH ER APPEAL ITAT DELHI BENCH C IN ITS ORDER DATED 28.11.2005 IN I. T.A. NO. 2251 AND 4154/DEL/2002 UPHELD THE ORDER OF LD. CIT(A). 3. THE ASSESSING OFFICER LEVIED PENALTIES U/S 271(1 )(C) IN BOTH THE YEARS WHICH HAVE BEEN CONFIRMED BY THE LD. CIT(A). 4. BEFORE US WHEN THE CASE CAME UP FOR HEARING LD . A.R. FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD FILED APPE AL AGAINST THE DECISION OF ITAT AND FOLLOWING QUESTION OF LAW HAVE BEEN ADMITTED: I.T.A.NO. 1704 1705/DEL/2010 3 (I) WHETHER THE INCOME TAX APPELLATE TRIBUNAL WAS CORRECT IN LAW IN HOLDING THAT INCOME OF THE ASSESSEE HAD BEEN UNDER ASSESSED IN SO FAR AS IT RELATES TO THE AMOUNT OF I NTEREST DEBITED AMOUNTING TO ` 79 46 380/- FOR THE ASSESSM ENT YEAR 1993-94? (II) WHETHER THE ITAT WAS CORRECT IN LAW IN NOT CO NSIDERING THE ALTERNATIVE SUBMISSION PERTAINING TO DEDUCTION U/S 80HHC OF THE ACT AS ALSO 10A OF THE ACT PERTAINING TO TH E UNIT AT FARIDABAD AND NEPZ NOIDA RESPECTIVELY? 5. IDENTICAL QUESTIONS OF LAW HAVE BEEN ADMITTED BY HON'BLE DELHI HIGH COURT VIDE ORDER DATED 14.05.2007 FOR TH E ASSESSMENT YEAR 1994-95 ALSO. HON'BLE DELHI HIGH COURT FOR TH E ASSESSMENT YEAR 1993-94 ADMITTED THE AFORESAID QUESTION OF LAW VIDE ORDER DATED 21.07.2006 IN I.T.A. NO. 986/2006 AND FOR THE ASSESSMENT YEAR 1994-95 IN I.T.A. NO. 1355/2006 DATED 14.05.20 07. 6. LD. A.R. FOR THE ASSESSEE FURTHER SUBMITTED THAT HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS H B LEASING & FINA NCE CO. LTD. VIDE ORDER DATED 28.02.2011 IN I.T.A. NO. 1612/2010 HAS HELD THAT SINCE APPEAL PREFERRED BY THE ASSESSEE HAS BEEN ADMITTED THIS WOULD SHOW THAT SUBSTANTIAL QUESTION OF LAW ON INTERPRETA TION IS INVOLVED. THEREFORE THE ISSUE WAS CLEARLY DEBATABLE. IN VIE W OF THESE FACTS LD. A.R. FOR THE ASSESSEE SUBMITTED THAT SINCE THE HON'BLE DELHI HIGH COURT HAS ADMITTED THE APPEALS IN WHICH THE QUESTIO NS OF LAW AS MENTIONED ABOVE ARISE AND THEREFORE THE ISSUE IS D EBATABLE AND HENCE NO PENALTY U/S 271(1)(C) CAN BE IMPOSED. ON THE OTHER HAND LD. SR. DR SUPPORTED THE ORDER OF CIT(A). 7. WE HAVE HARD BOTH THE PARTIES AND GONE THROUGH T HE MATERIAL AVAILABLE ON RECORD. WE HAVE GONE THROUGH THE ORDE R OF HON'BLE DELHI HIGH COURT WHEREIN THE APPEALS HAVE BEEN ADMI TTED INVOLVING SUBSTANTIAL QUESTION OF LAW AS MENTIONED ABOVE. HO N'BLE DELHI HIGH I.T.A.NO. 1704 1705/DEL/2010 4 COURT IN THE CASE OF CIT VS H B LEASING & FINANCE C O. LTD. (SUPRA) HAS HELD THAT WHEREIN THE APPEAL PREFERRED BY THE A SSESSEE INVOLVE SUBSTANTIAL QUESTION OF LAW THE ISSUE BECOMES DEBA TABLE. IN THE INSTANT CASE HON'BLE DELHI HIGH COURT HAS ADMITTED THE APPEAL INVOLVING SUBSTANTIAL QUESTION OF LAW AS MENTIONED ABOVE. THEREFORE THE ISSUE IS DEBATABLE WHETHER THE INCOM E OF THE ASSESSEE HAD BEEN UNDER ASSESSED IN SO FAR AS IT RE LATES TO THE AMOUNT OF INTEREST DEBITED. SINCE APPEAL OF THE AS SESSEE HAS BEEN ADMITTED ON SUBSTANTIAL QUESTION OF LAW THE ISSUE WHETHER PENALTY IS IMPOSABLE IS A DEBATABLE ISSUE. THEREFORE IN VIEW OF THE DECISION OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF H B LEASING & FINANCE CO. LTD. (SUPRA) IT IS HELD THAT PENALTY U /S 271(1) (C) IS NOT IMPOSABLE. WE RESPECTFULLY FOLLOWING THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS H B LEASING & FINA NCE CO. LTD. DELETE THE PENALTY IN BOTH THE ASSESSMENT YEARS. 8. IN THE RESULT THE APPEALS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 1993-94 AND 1994-95 ARE ALLOWED. 9. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH APR. 2011. SD./- SD./- (A. D. JAIN) (K. D. RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 08 TH APR. 2011 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR ITAT NEW DELHI