DCIT, New Delhi v. M/s. Sushila Milk Specialities Pvt. Ltd., New Delhi

ITA 4079/DEL/2010 | 2004-2005
Pronouncement Date: 14-01-2011 | Result: Dismissed

Appeal Details

RSA Number 407920114 RSA 2010
Bench Delhi
Appeal Number ITA 4079/DEL/2010
Duration Of Justice 4 month(s) 10 day(s)
Appellant DCIT, New Delhi
Respondent M/s. Sushila Milk Specialities Pvt. Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 14-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted G
Tribunal Order Date 14-01-2011
Date Of Final Hearing 12-01-2011
Next Hearing Date 12-01-2011
Assessment Year 2004-2005
Appeal Filed On 03-09-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G DELHI) BEFORE SHRI A.D. JAIN AND SHRI K.D. RANJAN ITA NO. 4079(DEL)2010 ASSESSMENT YEAR: 2004-05 DY.COMMISSIONER OF I. TAX M/S. SUSHILA MILK SPECIALITIES PVT. LTD. CENT. CIR.18 NEW DELHI. V. 216-217 JOSHI R OAD KAROL BAGH NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI KISHORE B. DR RESPONDENT BY: SHRI K. SAMPATH AD VOCATE ORDER PER A.D. JAIN J.M . THIS IS DEPARTMENTS APPEAL FOR THE ASSESSMENT YEAR 2004-05 TAKING THE FOLLOWING GROUNDS:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING TH E PENALTY OF ` 3 21 399/- IMPOSED BY THE AO U/S 271(1)(C) OF THE I NCOME TAX ACT 1961. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THA T MAKING OF A CLAIM WHICH IS NOT SUSTAINABLE IN LAW BY ITSELF WIL L NOT AMOUNT TO FURNISHING OF INACCURATE PARTICULARS. ITA 4079(DEL)2010 2 2. THE FACTS ARE THAT THE ASSESSEE RETURNED AN INCO ME OF ` 3 83 130/- FOR THE YEAR UNDER CONSIDERATION. AGAINST THIS TOTAL INCOME WAS ASSESSED AT ` 13 77 810/- MAKING DISALLOWANCE OF FOREIGN TRAVELL ING EXPENSES OF ` 8 01 799/-. THE LD. CIT(A) REDUCED THE DISALLOWAN CE OF ` 8 01 799/- TO ` 7 14 863/- ALLOWING A RELIEF OF ` 86 936/- TO THE ASSESSEE. THE ASSESSEE DID NOT PREFER ANY FURTHER APPEAL IN ORDER TO AVOID PRO LONGED LITIGATION. 3. IN THE PENALTY PROCEEDINGS THE ASSESSEE SUBMITT ED INTER ALIA THAT THE ASSESSEE HAD NEITHER CONCEALED ANY PARTICULARS OF ITS INCOME NOR HAD IT FURNISHED ANY INACCURATE PARTICULARS THEREOF; THAT THE DISALLOWANCE HAD BEEN MADE ON ACCOUNT OF DIFFERENCE OF OPINION REGARDING ALLOWING OR DISALLOWING FOREIGN TRAVELLING EXPENSES CLAIMED BY THE ASSESSEE ; THAT THE ASSESSEE HAD FURNISHED COMPLETE DETAILS ALONG WITH SUPPORTING EV IDENCE AND HAD EXPLAINED THE NECESSITY FOR INCURRENCE OF THE FOREI GN TRAVELLING EXPENSES; THAT SUCH EXPLANATION HOWEVER HAD NOT FOUND FAVOUR WIT H THE AO AND THE LD. CIT(A) ACCEPTED THE EXPLANATION IN PART; THAT NO PE NALTY CAN BE IMPOSED FOR DIFFERENCE IN THE INCOME RETURNED AND THE INCOME AS SESSED DUE TO DISALLOWANCE OF CLAIM MADE BY THE ASSESSEE; THAT IT WAS NOT ESTABLISHED THAT THE ASSESSEE HAD ANY INTENTION TO CONCEAL THE PARTI CULARS OF ITS INCOME OR TO FURNISH INACCURATE PARTICULARS THEREOF AND SO NO C ONCEALMENT PENALTY COULD BE LEVIED. ITA 4079(DEL)2010 3 4. THE AO HOWEVER OBSERVED THAT THE ASSESSEE WAS EVIDENTLY IN DEFAULT IN VIEW OF THE PROVISIONS OF SECTION 271(1)(C) OF THE I.T. ACT AND HAD CONCEALED THE PARTICULARS OF ITS INCOME OR HAD FURN ISHED INACCURATE PARTICULARS OF SUCH INCOME TO THE EXTENT OF ` 8 95 885/- IN RESPECT OF THE ADDITION MADE BY THE AO WHICH HAD BEEN SUBSEQUENTLY CONFIRMED BY THE LD. CIT(A); THAT THE ASSESSEE HAD NOT PREFERRED ANY FUR THER APPEAL BEFORE THE ITAT WHICH IMPLIED THAT THE ADDITIONS MADE BY THE AO WERE GENUINE AND UNDISPUTED; THAT THE ASSESSMENT RECORDS SHOWED THAT THERE WAS NO REASONABLE CAUSE EXISTING AT THE TIME OF FILING OF THE RETURN WHICH COULD PREFER THE ASSESSEE FROM REVEALING ACCURATE PARTICULARS OF ITS INCOME AND THE ASSESSEE WAS ALSO UNABLE TO FURNISH ANY EVIDENCE TO THE CONT RARY; AND THAT AS SUCH CONCEALMENT PENALTY OF ` 3 21 399/- WAS LEVIABLE. 5. BY VIRTUE OF THE IMPUGNED ORDER THE LD. CIT(A) CANCELLED THE PENALTY LEVIED. 6. AGGRIEVED THE DEPARTMENT IS IN APPEAL. 7. THE LEARNED DR HAS CONTENDED THAT THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY OF ` 3 21 399/- IMPOSED BY THE AO U/S 271(1)(C) OF THE I.T. ACT ON THE ASSESSEE; AND THAT THE LD. CIT(A) H AS ERRED IN HOLDING THAT MAKING OF A CLAIM WHICH IS NOT SUSTAINABLE IN LAW B Y ITSELF WILL NOT AMOUNT ITA 4079(DEL)2010 4 TO FURNISHING OF INACCURATE PARTICULARS. RELIANCE HAS BEEN PLACED ON CIT V. ZOOM COMMUNICATIONS PVT. LTD. 327 ITR 510(DEL). 8. THE LEARNED COUNSEL FOR THE ASSESSEE ON THE OTH ER HAND HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER. HE HAS REI TERATED THAT NO CONCEALMENT OF INCOME OR OF FURNISHING OF INACCURAT E PARTICULARS OF INCOME AT THE HANDS OF THE ASSESSEE STANDS ESTABLISHED AN D THEREFORE THE LD. CIT(A) HAS CORRECTLY CANCELLED THE PENALTY WRONGLY LEVIED. RELIANCE HAS BEEN PLACED ON CIT V. RELIANCE PETRO PRODUCTS PVT. LTD. 322 ITR 158 (SC). 9. WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE M ATERIAL ON RECORD WE FIND NO ERROR WHATSOEVER IN THE ORDER OF THE LD. CIT(A). THE DISALLOWANCE HAD BEEN MADE ON ACCOUNT OF DIFFERENCE OF OPINION REGARDING ALLOWANCE OR DISALLOWANCE OF FOREIGN TRAVELLING EXP ENSES CLAIMED BY THE ASSESSEE. UNDISPUTEDLY THE ASSESSEE HAD FURNISHE D COMPLETE DETAILS ALONG WITH SUPPORTING EVIDENCE BEFORE THE AO. THE NECE SSITY FOR INCURRENCE OF THE EXPENSES HAD BEEN EXPLAINED. IT WAS ONLY THAT SUCH EXPLANATION DID NOT FIND FAVOUR WITH THE AO AND SUCH EXPLANATION WAS AC CEPTED IN PART BY THE LD. CIT(A). IN CIT V. BACARDI MARTINI INDIA LTD. 2 88 ITR 588(DEL) IT HAS BEEN HELD THAT NO INTENTION TO CONCEAL INCOME CAN B E IMPUTED ON THE ASSESSEE MERELY BECAUSE THERE IS A DIFFERENCE OF OPINION RE GARDING ALLOWANCE OR DISALLOWANCE BETWEEN THE ASSESSEE AND THE AO PERTA INING TO CERTAIN ITA 4079(DEL)2010 5 EXPENDITURE CLAIMED. IN BALAJI VEGETABLE PRODUCT S PVT. LTD. V. CIT 290 ITR 172(KARNATAKA) IT HAS BEEN HELD THAT MERE REFU SAL BY THE REVENUE TO ACCEPT THE CLAIM OF THE ASSESSEE FOR DEDUCTION AND TREATING IT AS INCOME CANNOT MEAN INTENTION OF THE ASSESSEE TO CONCEAL IN COME. 10. FURTHER IN RELIANCE PETRO PRODUCTS PVT. LTD. (SUPRA) IT HAS BEEN HELD THAT WHERE NO INFORMATION GIVEN IN THE RETURN IS FO UND TO BE INCORRECT MAKING AN INCORRECT CLAIM DOES NOT AMOUNT TO CONCEA LMENT OF PARTICULARS OF INCOME; THAT A MERE MAKING OF A CLAIM WHICH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO FURNISHING INACCURATE PA RTICULARS REGARDING THE INCOME OF THE ASSESSEE; AND THAT SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS. 11. RELIANCE BY THE DEPARTMENT ON ZOOM COMMUNICATI ONS PVT. LTD.(SUPRA) IS OF NO AID TO THE DEPARTMENT. THE REIN ON FACTS IT WAS HELD THAT WHERE THE CLAIM FOR DEDUCTION IS NOT BONA FIDE IT AMOUNTED TO CONCEALMENT OF INCOME. IT IS NOT SO HEREIN. MOREO VER ZOOM COMMUNICATIONS PVT. LTD.(SUPRA) HAS NOT BEEN SHOW N TO BE AT VARIANCE WITH RELIANCE PETRO PRODUCTS PVT. LTD.(SUPRA). STILL FURTHER RELIANCE PETRO PRODUCTS PVT. LTD.(SUPRA) IS A DECISION REN DERED BY THE HONBLE SUPREME COURT. ITA 4079(DEL)2010 6 12. THE LD. CIT(A) WHILE CANCELLING THE PENALTY IN QUESTION HAS NOTED INTER ALIA THAT THERE IS NO FINDING OF THE AO THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN WERE FOUND TO BE INCORRECT O R ERRONEOUS OR FALSE. AS RIGHTLY OBSERVED BY THE LD. CIT(A) MERE MAKING O F A CLAIM WHICH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO F URNISHING OF INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE P ARTICULARLY WHEN THE ASSESSEE HAD FURNISHED ALL THE DETAILS OF ITS EXPEN DITURE AS WELL AS INCOME IN THE RETURN OF INCOME AND THEY WERE NOT FOUND TO BE INCORRECT NOR COULD THEY BE VIEWED AS A CONCEALMENT OF INCOME BY THE ASSESSE E. FURTHER IN THE ASSESSMENT ORDER THE AO HAS INTER ALIA OBSERVED THAT:- HOWEVER IN VIEW OF THE FACTS AND CIRCUMSTANC ES OF THE CASE IT IS EVIDENT THAT THE ASSESSEE IS IN DEFAULT IN VIEW OF THE PROVISIONS OF SECTION 271(1)(C) OF THE I.T. ACT AND HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE P ARTICULARS OF SUCH INCOME . TO THE EXTENT OF ` 8 95 885/- IN RESPECT OF THE ADDITION MADE BY THE AO AND WHICH HAS BEEN SUBSEQUENTLY CONF IRMED BY THE CIT(A). (EMPHASIS SUPPLIED) 13. THE ORDER OF THE LD. CIT(A) HAS THUS NOT BEEN SHOWN TO BE ERRONEOUS AND IT IS HEREBY CONFIRMED. THE GRIEVANCE RAISED BY THE DEPARTMENT BY WAY OF GROUND NOS. 1&2 IS THEREFORE REJECTED. ITA 4079(DEL)2010 7 14. IN THE RESULT THE APPEAL FILED BY THE DEPARTME NT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.01.2011. SD/- SD/- (K.D. RANJAN) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14.01.2011 *RM COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR TRUE COPY BY ORDER DEPUTY REGISTRAR