ITO, Panipat v. Sh. Sushil Gupta, Panipat

ITA 4148/DEL/2009 | 2000-2001
Pronouncement Date: 17-03-2010 | Result: Dismissed

Appeal Details

RSA Number 414820114 RSA 2009
Assessee PAN AAEFS4230N
Bench Delhi
Appeal Number ITA 4148/DEL/2009
Duration Of Justice 4 month(s) 26 day(s)
Appellant ITO, Panipat
Respondent Sh. Sushil Gupta, Panipat
Appeal Type Income Tax Appeal
Pronouncement Date 17-03-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted G
Tribunal Order Date 17-03-2010
Date Of Final Hearing 17-03-2010
Next Hearing Date 17-03-2010
Assessment Year 2000-2001
Appeal Filed On 22-10-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI C.L.SETHI JM AND SHRI R.C.SHARMA AM ITA NOS.4149/DEL/2009 & 4150/DEL/2009 ASSESSMENT YEARS : 1999-2000 & 2000-01 ASSTT.COMMISSIONER OF INCOME TAX PANIPAT CIRCLE PANIPAT. VS. M/S SHEENA OVERSEAS PVT.LTD. UJHA ROAD PANIPAT. PAN NO.AAEFS4230N. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KISHORE B. SR.DR. RESPONDENT BY : NONE. ITA NO.4146/DEL/2009 ASSESSMENT YEAR : 2001-02 INCOME TAX OFFICER WARD-4 PANIPAT. VS. M/S SHREE BALAJI EXPORTS UJHA ROAD PANIPAT. PAN NO.AALFS7841N. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KISHORE B. SR.DR. RESPONDENT BY : NONE. ITA NO.4148/DEL/2009 ASSESSMENT YEAR : 2000-01 INCOME TAX OFFICER WARD-3 PANIPAT. VS. SHRI SUSHIL GUPTA PROP. M/S AALISHAN EXPORTS 509-L PANIPAT. PAN NO.ABSPG9709P. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KISHORE B. SR.DR. RESPONDENT BY : SHRI C.AGGARWAL CA. ITA-4149/D/2009 & 4 OTHERS 2 ITA NO.4152/DEL/2009 ASSESSMENT YEAR : 2004-05 ASSTT.COMMISSIONER OF INCOME TAX PANIPAT CIRCLE PANIPAT. VS. M/S SHIV SHAKTI EXPORTS P.O.BOX NO.180 PASINA KALAN ROAD PANIPAT. PAN NO.AAOFS0180R. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KISHORE B. SR.DR. RESPONDENT BY : SHRI BASANT KUMAR ADVOCATE. ORDER PER R.C.SHARMA AM : THESE ARE THE APPEALS FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DELETING THE PENALTY IMPOSED U/S 271(1)(C) WITH REG ARD TO ASSESSEES CLAIM OF DEDUCTION U/S 80IA/80IB OF THE IT ACT. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. IN ALL THESE APPEALS PENALTY WAS LEVIED BY THE AO U/S 271(1)(C) FOR DENI AL OF ASSESSEES CLAIM OF DEDUCTION U/S 80IA/80IB ON THE AMOUNT PERTAINING TO DEPB AND DUTY DRAWBACK. AS PER AO THESE AMOUNTS ARE NOT DERIVED FROM INDUS TRIAL UNDERTAKING THEREFORE ASSESSEE IS NOT ELIGIBLE FOR CLAIM OF DEDUCTION ON THESE RECEIPTS U/S 80IA/80IB. THE CIT(A) HAS DELETED THE PENALTY AFTER CONSIDERIN G VARIOUS DECISIONS OF HONBLE HIGH COURTS WHICH CLEARLY INDICATE THAT TWO VIEWS W ERE POSSIBLE ON THE CLAIM OF DEDUCTION ON THESE INCENTIVES U/S 80IB. THE CIT(A) ALSO FOUND THAT ASSESSEE HAS NOT FURNISHED ANY INACCURATE PARTICULARS NOR CONCEA LED ANY INCOME. THE CLAIM OF DEDUCTION U/S 80IA/80IB WAS CERTIFIED BY THE CHARTE RED ACCOUNTANT AND THE PENALTY WAS LEVIED MERELY BECAUSE CLAIM WAS DISALLO WED. IN THE CASE OF SHIV SHAKTI EXPORTS LEARNED AR PLACED ON RECORD ORDER O F THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE IMMEDIATELY PRECEDING AYS 2002-03 & 2003-04 ORDER DATED 20.5.2009 WHEREIN ON EXACTLY SIMILAR FACTS THE PE NALTY WAS DELETED BY CIT(A) ITA-4149/D/2009 & 4 OTHERS 3 AND THE TRIBUNAL CONFIRMED THE ORDER OF CIT(A) HOLD ING THAT IT WAS NOT A FIT CASE FOR LEVY OF PENALTY. WE HAVE GONE THROUGH THE ORDE R OF THE TRIBUNAL WHICH IS EXACTLY ON THE SIMILAR FACTS WHEREIN DELETION OF P ENALTY BY THE CIT(A) IN RESPECT OF CLAIM OF DEDUCTION WITH RESPECT TO EXPORT INCENT IVES WAS UPHELD AFTER HAVING THE FOLLOWING OBSERVATION:- 8. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORDS CAREFULLY. THERE IS NO DISPUTE ON FACTS THAT ASSESSEES HAVE DISCLOSED COMPLETE DETAILS OF THEIR CLAIMS IN THE RETURNS OF INCOME. THE ASSESSEES HAVE MADE THEIR CL AIMS ON THE BASIS OF ADVISE GIVEN BY THE EXPERT ON THE SUBJECT. THE A UDIT REPORT AND THE CLAIM IN NECESSARY PROFORMA WERE SUBMITTED ALONG WI TH THE RETURNS. FROM PERUSAL OF THE RECORD IT REVEALED THAT CLAIM OF THE ASSESSEES WERE BONA FIDE CLAIM. THERE WERE LARGE NUMBERS OF O RDERS AT THE END OF THE ITAT IN FAVOUR OF THE ASSESSEES. THE ISSUE W HETHER DEDUCTION UNDER SEC. 80-IB WOULD BE ADMISSIBLE ON DUTY DRAW B ACK AND DEPB IS STILL A DEBATABLE ISSUE. THERE ARE DIVERGENT OPI NION ON THIS ISSUE BY THE DIFFERENT HON'BLE HIGH COURT. THE HON'BLE DELHI HIGH COURT IS OF THE OPINION THAT DEDUCTION UNDER SEC. 80-IB WOUL D BE ADMISSIBLE ON DUTY DRAW BACK AND DEPB. IN THE CASES OF LAKHVIN DER SINGH IN ITA NO.5169/DEL/04 DECIDED ON SEPTEMBER 28 2005 T HEN IN THE CASE OF ACIT VS. SHRI VIPIN SARDHANA IN ITA NO.5174 /DEL/04 DECIDED ON 17.6.2005 AND AGAIN IN THE CASE OF ITO V S. ESS KAY ENTERPRISES ITAT DELHI BENCHES HAVE ALLOWED THE DE DUCTION TO THE ASSESSEE UNDER SEC. 80-IB ON DUTY DRAW BACK. HON'BL E PUNJAB & HARYANA HIGH COURT IN THE CASE OF LIBERTY SHOES (SU PRA) HAS HELD THAT DEDUCTION UNDER SEC. 80-IB WOULD NOT BE ADMISS IBLE TO THE ASSESSEE. THE SLPS HAVE BEEN FILED AGAINST THE DECI SIONS OF HON'BLE PUNJAB & HARYANA HIGH COURT AS WELL AS AGAINST THE DECISIONS OF HON'BLE DELHI HIGH COURT IN THE HON'BLE SUPREME COU RT WHICH ARE STAND ADMITTED AS INFORMED BY THE LEARNED REPRESENT ATIVE OF THE ASSESSEE. THUS PRIMA FACIE IT INDICATES THAT THIS ISSUE WAS A DEBATABLE ONE. HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. BUDH WELL CO-OPERATIVE SUGAR MILLS (SUPRA.) HAS HELD THAT IF AN ASSESSEE HAS MADE A BONA FIDE CLAIM ON THE BASIS OF LAW LAID DOWN BY VARIOUS HON'BLE HIGH COURTS THEN PENALTY WOULD N OT BE LEVIED UPON SUCH AN ASSESSEE MERELY ON THE GROUND THAT HIS CLAIM WAS DISALLOWED. SIMILARLY THE HON'BLE RAJASTHAN HIGH C OURT IN THE CASE OF CIT VS. HARSHVARDHAN (SUPRA) HAS HELD THAT IF AS ASSESSEE CLAIMS SOME DEDUCTIONS WHICH ARE DEBATABLE THEN IT COULD N OT BE SAID THAT ASSESSEE HAS CONCEALED ANY INCOME OR FURNISHED INAC CURATE PARTICULARS OF INCOME WHICH EXPOSED HIM WITH THE PE NALTY PROCEEDINGS UNDER SEC. 271(1)(C) OF THE ACT. SIMILA RLY HON'BLE ITA-4149/D/2009 & 4 OTHERS 4 PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. TEK RAM (SUPRA) HAS CONSIDERED THIS ISSUE. IN THIS CASE AS SESSEE DID NOT SHOW ENHANCED COMPENSATION RECEIVED BY HIM ON ACCOUNT OF ACQUISITION OF HIS LAND AS HIS INCOME. THE ASSESSING OFFICER MADE THE ADDITION AND LEVIED PENALTY UNDER SEC. 271(1)(C). HONBLE COURT HAS HELD THAT MATTER RELATING TO TAXABILITY OF ENHANCED COMPENSAT ION RECEIVABLE BY THE ASSESSEE WAS STILL IN DISPUTE AND TWO VIEWS WER E 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 ITAT AS WELL AS DECISIONS OF HON'BLE HIGH COURTS. IN SUCH SITUATION IT CANNOT BE SAID THAT ASSESSEES HA VE CONCEALED INCOME OR FURNISHED INACCURATE PARTICULARS. THERE I S NO ALLEGATION BY THE ASSESSING OFFICER THAT ASSESSEES HAVE NOT DISCL OSED THE COMPLETE PARTICULARS. THE ONLY ALLEGATION IS THAT ASSESSEES HAVE CLAIMED DEDUCTION ON DEPB AND DUTY DRAW BACK UNDER SEC. 80- IB WHICH IS NOT ADMISSIBLE TO THEM. 9. TAKING INTO CONSIDERATION ALL THESE FACTS AND CI RCUMSTANCES WE ALLOW ALL THESE APPEALS AND DELETE THE PENALTY. 10. IN THE RESULT ALL THE APPEALS FILED BY THE ASS ESSEES ARE ALLOWED. 6. RESPECTFULLY FOLLOWING THE ORDERS OF THE ITAT IN THE CASE OF M/S. ORIENTAL RUG COMPANY & ORS. WE ALLOW BOTH THE APPEALS OF THE ASSESSEE. 7. IN THE RESULT BOTH THE APPEALS ARE ALLOWED. 3. AS THE FACTS AND CIRCUMSTANCES IN ALL THE APPEAL S BEFORE US ARE PARI-MATERIA AND AFTER GIVING SIMILAR REASONING THE CIT(A) HAS DELETED THE PENALTY RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL AS STATED ABOVE WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF THE CIT(A) FOR DELETING T HE PENALTY. 4. IN THE RESULT ALL THE APPEALS OF THE REVENUE AR E DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 17 TH MARCH 2010. SD/- SD/- (C.L.SETHI) (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED :17.03.2010. VK. ITA-4149/D/2009 & 4 OTHERS 5 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT DEPUTY REGISTRAR