M/s. Triveni Conductors Ltd., Indore v. The Dy. Commissioner of Income Tax 1(2), Indore

ITA 454/IND/2010 | 1996-1997
Pronouncement Date: 13-09-2011 | Result: Allowed

Appeal Details

RSA Number 45422714 RSA 2010
Bench Indore
Appeal Number ITA 454/IND/2010
Duration Of Justice 1 year(s) 2 month(s) 4 day(s)
Appellant M/s. Triveni Conductors Ltd., Indore
Respondent The Dy. Commissioner of Income Tax 1(2), Indore
Appeal Type Income Tax Appeal
Pronouncement Date 13-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 13-09-2011
Assessment Year 1996-1997
Appeal Filed On 09-07-2010
Judgment Text
1 8IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NOS. 454 & 455/IND/2010 A.YS. 1996-97 AND 1997-98 TRIVENI CONDUCTORS LIMITED INDORE PAN AABCT21005 . APPELLANT VS. DY. COMMISSIONER OF INCOME TAX 1(2) INDORE . RESPONDENT DATE OF HEARING : 12.9.2011 DATE OF PRONOUNCEMENT : 13.9.2011 APPELLANT BY SHRI PRAKASH JAIN RESPONDENT BY SHRI ARUN DEWAN ORDER PER JOGINDER SINGH JUDICIAL MEMBER THESE APPEALS ARE BY THE ASSESSEE FOR THE ASSESSME NT YEARS 1996-97 AND 1997-98 AGAINST THE CONSOLIDATED ORDER DATED 4.5.2010 OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CO NFIRMING IMPOSITION OF PENALTY OF RS. 1 87 250/- AND RS. 5 3 2 450/- RESPECTIVELY UNDER SECTION 271(1) OF THE ACT. 2 2. DURING HEARING OF THESE APPEALS WE HAVE HEARD S HRI PRAKASH JAIN LD. COUNSEL FOR THE ASSESSEE AND SHRI ARUN DE WAN LEARNED SENIOR DEPARTMENTAL REPRESENTATIVE. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE ASSESSEE CLAIMED DEDUCTION U/S 80IA OF THE ACT AMOUNTING TO RS. 5 48 808/- @ 30%. THE CLAIM OF THE ASSESSEE IS THAT AS THE ASSESSABLE INCOME IS LIKELY TO BE INCREASED DUE TO ADDITION OF DEFERMENT OF SALESTAX AMOUNT THEREFORE THE CLAIM MAY BE ALLOWED AS PER PROVISIONS OF THE ACT. THE ASSESSEE WAS SPECIF ICALLY POINTED OUT BY THE REVENUE THAT THE AMOUNT OF INTEREST RECEIVED ON FIXED DEPOSITS IS NOT TO BE CONSIDERED FOR THE PURPOSES OF COMPUTATION OF TOTAL INCOME FOR CLAIMING DEDUCTION U/S. 80IA OF THE ACT. THE DECIS IONS OF THE HONBLE JURISDICTIONAL HIGH COURT AND OF THE TRIBUNAL WERE BROUGHT TO THE NOTICE OF THE ASSESSEE. THE PROPORTIONATE AMOUNT WAS HELD TO BE NOT ALLOWABLE TO THE ASSESSEE. THE ASSESSEE REVISED THE RETURN OF I NCOME CONSEQUENT TO SURVEY U/S 133A OF THE ACT AND THE PENALTY WAS IMPO SED WITH REFERENCE TO ADDITIONS/DISALLOWANCES MADE BY THE ASSESSING OF FICER. IT WAS SUBMITTED THAT THE PENALTY WAS IMPOSED BY THE LEARN ED ASSESSING OFFICER WITHOUT APPLICATION OF MIND. OUR ATTENTION WAS INVITED TO THE SHOW CAUSE NOTICE DATED 11.12. 2007 WHICH IS SILENT AS TO ON WHICH ITEM PENALTY WAS LEVIED AND ARRIVAL TO THE FIGURE OF RS. 1 87 250/-. A PLEA WAS ALSO RAISED THAT NO OPPORTUNITY WAS GIVEN TO THE AS SESSEE TO EXPLAIN 3 EACH AND EVERY ITEM ON WHICH THE LEARNED DCIT WANTE D TO LEVY PENALTY. THE PROPER SATISFACTION WAS EVEN NOT RECORDED BY TH E ASSESSING OFFICER. IN SUPPORT THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION IN D&H SECHERON ELECTRODES LTD. VS. DCIT; 10 CTJ 74 (I TAT INDORE); NAI DUNIA . INDORE VS. ACIT; 10 ITJ 162 AND M/S CLASSI C ELECTRONICS VS. ITO; 6 ITJ 543 (ITAT INDORE). RELIANCE WAS ALSO PLACED IN CIT VS. SURESHCHAND MITTAL; 7 ITJ 783 (MP) AND CIT VS. GANE SH PRASAD BADRIPRASAD; 7 ITJ 780 (MP). ON THE OTHER HAND T HE LEARNED SENIOR DEPARTMENTAL REPRESENTATIVE DEFENDED THE IMPOSITION OF PENALTY BY CONTENDING THAT THE ASSESSEE FURNISHED INACCURATE P ARTICULARS THEREFORE THE PENALTY WAS RIGHTLY IMPOSED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RE CORD. BRIEF FACTS ARE THAT FOR THE ASSESSMENT YEAR 1996-97 INCOME OF RS. 12 31 170/- WAS DECLARED IN THE RETURN FILED ON 28.11.1996 WHICH WA S PROCESSED UNDER SECTION 143(1)(A) OF THE ACT ON 29.7.1997. FOR THE ASSESSMENT YEAR 1997-98 RETURN OF INCOME WAS FILED AT RS. 3 59 500/ -ON 28.11.1997 WHICH WAS PROCESSED ON 31.3.1998. A SURVEY U/S 133A OF THE ACT WAS CARRIED OUT AT THE OFFICE PREMISES OF THE ASSESSEE AND OTHER ASSESSEES OF THIS GROUP ON 20.3.1998. AS PER THE REVENUE CE RTAIN INCRIMINATING DOCUMENTS WERE FOUND. THE ASSESSEE REVISED THE RE TURN OF INCOME ON 28.3.1998 (FOR THE ASSESSMENT YEAR 1996-97) SHOWING TOTAL INCOME OF 4 RS. 16 05 880/- WHICH INCLUDES ADDITIONAL INCOME OF RS.5 35 300/-. THE LD. COUNSEL FOR THE ASSESSEE FILED BIFURCATION OF I NTEREST INCOME OF RS.21 08 699/- FOR THE PURPOSES OF ALLOWING DEDUCTI ON U/S 80IA OF THE ACT. WITHOUT GOING INTO MUCH DELIBERATION WE FIND THAT THE ASSESSING OFFICER LEVIED PENALTY ON THE INCOME SURRENDERED IN THE REVISED RETURN AS A RESULT OF SURVEY U/S 133A OF THE ACT AND THE DISA LLOWANCE OF DEDUCTION CLAIMED U/S 80IA OF THE ACT ON INTEREST RECEIVED ON FIXED DEPOSITS AND DEPRECIATION CLAIMED IN RESPECT OF UNIT NO. 1. NO W THE QUESTION ARISES WHETHER THE PENALTY CAN BE LEVIED ON THE INCOME DEC LARED IN THE REVISED RETURN WHICH WAS ACCEPTED BY THE DEPARTMENT. THE O BVIOUS REPLY IS NO BECAUSE THE ASSESSEE IS COVERED BY THE UMBRELLA OF THE HONBLE JURISDICTIONAL HIGH COURT IN SURESHCHAND MITTAL; 24 1 ITR 124 WHEREIN IT WAS HELD AS UNDER :- HEAD NOTES THE ASSESSEES RETURNS WERE FILED ORIGI NALLY SHOWING A MEAGRE INCOME. LATER ON IN PURSUANCE OF A NOTICE ISSUED U/S 148 OF THE INCOME TAX ACT 1961 REVISED RETURNS WERE FILED SHOWING HIGHER INCOME TO PURCHAS E PEACE OF MIND AND AVOID VEXATIOUS LITIGATION. THE R EVISED RETURNS WERE ACCEPTED AND REGULARIZED BY THE REVENU E. ON INITIATION OF PENALTY PROCEEDINGS U/S 271(1) THE TRIBUNAL HELD THAT PENALTY COULD NOT BE LEVIED BECAUSE THERE WAS NO CONCEALMENT. ON REFERENCE HELD THAT THE ASSESSMENT WAS MADE BY THE REVENUE AND ONCE THE ASSESSING OFFICER HAD FAILED TO TAKE A NY OBJECTION IN THE MATTER THE DECLARATION OF INCOME MADE BY THE ASSESSEE IN HIS REVISED RETURNS AND THE EXPLANA TION THAT HE HAD DONE SO TO BUY PEACE WITH THE DEPARTMEN T AND TO COME OUT OF VEXED LITIGATION COULD BE TREATED AS BONAFIDE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. ACCORDI NGLY NO PENALTY COULD BE LEVIED FOR CONCEALMENT. 5 IT IS PERTINENT TO MENTION HERE THAT THE AFORESAID DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT WAS AFFIRMED BY THE HONB LE APEX COURT REPORTED IN 251 ITR 9. THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF RELIANCE PETRO PRODUCTS PRIVATE LIMITED; (2 010) 322 ITR 158 WHEREIN IT WAS CLEARLY HELD THAT MAKING INCORRECT C LAIM IN THE RETURN DOES NOT AMOUNT TO CONCEALMENT OF PARTICULARS OF INCOME. THE HONBLE COURT HELD AS UNDER :- A GLANCE AT THE PROVISIONS OF SECTION 271(1) OF T HE INCOME TAX ACT 1961 SUGGESTS THAT IN ORDER TO BE COVERED BY IT THERE HAS TO BE CONCEALMENT OF THE PARTICULA RS OF THE INCOME OF THE ASSESSEE. SECONDLY THE ASSESSEE MUS T HAVE FURNISHED INACCURATE PARTICULARS OF HIS INCOME . THE MEANING OF THE WORD PARTICULARS USED IN SECTION 2 71(1) WOULD EMBRACE THE DETAILS OF THE CLAIM MADE. WHERE NO INFORMATION GIVEN IN THE RETURN IS FOUND TO BE INCO RRECT OR INACCURATE THE ASSESSEE CANNOT BE HELD GUILTY OF F URNISHING INACCURATE PARTICULARS. IN ORDER TO EXPOSE THE ASS ESSEE TO PENALTY UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISION THE PENALTY PROVISION CANNOT BE INVOKED. BY NO STR ETCH OF IMAGINATION CAN MAKING AN INCORRECT CLAIM TANTAMOUN T TO FURNISHING INACCURATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHING WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE BECAUSE THAT IS THE ONLY DOCUMENT WHERE TH E ASSESSEE CAN FURNISH THE PARTICULARS OF HIS INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACCURATE THE LI ABILITY WOULD ARISE. TO ATTRACT PENALTY THE DETAILS SUPPLI ED IN THE RETURN MUST NOT BE ACCURATE NOT EXACT OR CORRECT NOT ACCORDING TO THE TRUTH OR ERRONEOUS. WHERE THERE IS NO FINDING THAT ANY DE TAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN ARE FOJND TO BE INCOR RECT OR ERRONEOUS OR FALSE THERE IS NO QUESTION OF INVITING THE PENALTY U/S 271(1). A MERE MAKING OF A CLAIM WHI CH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INC OME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANN OT AMOUNT TO FURNISHING INACCURATE PARTICULARS. 6 IN VIEW OF THE ABOVE IT CAN BE SAID THAT MERE MAKI NG OF CLAIM WHICH IS NOT SUSTAINABLE IN LAW BY ITSELF WOULD NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING INCOME OF THE ASSE SSEE. THEREFORE IT DOES NOT AMOUNT TO FURNISHING ACCURATE PARTICULARS OF INCOME. THE HONBLE APEX COURT IN THE AFORESAID CASE WHILE COM ING TO A PARTICULAR CONCLUSION AFFIRMED THE DECISION OF HONBLE GUJARA T HIGH COURT AND FURTHER PLACED RELIANCE ON DILIP N. SHROFF VS. JCIT ; 291 ITR 519 (SC) SHRIKRISHNA ELECTRICALS; 23 VST 249 (SC); ATUL MOH AN BINDAL; 317 ITR 1 (SC) AND ALSO THE DECISION OF DHARMENDRA TEXTILES P ROCESSORS; 306 ITR 277 AND RAJASTHAN SPINNING & WEAVING MILLS (2010) 1 GSTR 66 (SC). THEREFORE WE ARE OF THE OPINION THAT NO PENALTY IS LEVIABLE. BOTH THE LEARNED COUNSELS CONTENDED THAT THE FACTS FOR THE A SSESSMENT YEAR 1997-98 ARE IDENTICAL TO ASSESSMENT YEAR 1996-97. THEREFORE OUR ABOVE DECISION WILL BE APPLICABLE TO THE ASSESSMENT YEAR 1997-98 ALSO. FINALLY THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 12.9.2 011. SD/- SD/- (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13.9.2011 COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR DN/-