ITO 9(3)(3), MUMBAI v. TRANSWEIGH (INDIA) LTD, MUMBAI

ITA 6191/MUM/2010 | 2003-2004
Pronouncement Date: 18-11-2011 | Result: Dismissed

Appeal Details

RSA Number 619119914 RSA 2010
Assessee PAN AAACT6527G
Bench Mumbai
Appeal Number ITA 6191/MUM/2010
Duration Of Justice 1 year(s) 3 month(s) 5 day(s)
Appellant ITO 9(3)(3), MUMBAI
Respondent TRANSWEIGH (INDIA) LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 18-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 18-11-2011
Date Of Final Hearing 09-11-2011
Next Hearing Date 09-11-2011
Assessment Year 2003-2004
Appeal Filed On 13-08-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI E BENCH BEFORE SHRI B.R.MITTAL JUDICIAL MEMBER & BEFORE SHRI T.R.SOOD ACCOUNTANT MEMBER I.T.A.NO.6191/MUM/2010 A.Y 2003-04 THE INCOME TAX OFFICER 9(3)(3) MUMBAI VS. M/S. TRANSWEIGH (INDIA) LTD. 124 ABCD GOVT. INDUSTRIAL ESTATE KANDIVALI (E) MUMBAI 400 067. PAN: AAACT 6527 G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.P.TRIVEDI. RESPONDENT BY : SHRI HINTEN VASANT. DATE OF HEARING: 09-11-2011 DATE OF PRONOUNCEMENT: 18-11-2011. O R D E R PER T.R.SOOD AM: IN THIS APPEAL THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) ERRED IN CANCELLING THE PENALTY U/S. 271(1) OF THE I.T.ACT 1961 AMOUNTING TO RS.5 72 224/-. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) BE SET ASIDE ON THE GROUNDS MENTIONED ABOVE AND THAT OF THE ASSE SSING OFFICER BE RESTORED. 2. AFTER HEARING BOTH THE PARTIES WE FIND THA T IN THIS CASE ORIGINALLY VARIOUS ADDITIONS TOTALLING TO RS.50 53 606/- WERE MADE OUT OF WHICH SOME OF THE ADDITIONS WERE DELETED BY THE LD. CIT(A ) AND ONLY TWO ADDITIONS REMAINED WHICH ARE AS UNDER: 1. EMPLOYEES CONTRIBUTION TO PF U/S.36(1) (IV) RS. 4 83 755/- 2. CLAIM U/S.43B RS.10 73 314/- TOTAL .. .. RS.15.57.069/- ITA NO.6191 OF 2010 2 ON THE BASIS OF THE ABOVE TWO ADDITIONS PENALTY PR OCEEDINGS U/S.271(1) WERE INITIATED. IN RESPONSE IT WAS SUB MITTED THAT MAINLY ADDITIONS HAVE BEEN MADE ON ACCOUNT OF DISPUTED DEM AND OF EXCISE AMOUNTING TO RS.10 73 314/- AND EMPLOYEES CONTRIBUT ION TO P.F. AMOUNTING TO RS.4 83 755/-. IT WAS SUBMITTED THAT A SSESSEE HAS NEITHER CONCEALED ANY INCOME NOR FURNISHED INACCURA TE PARTICULARS OF INCOME THEREFORE PENALTY WAS NOT LEVIABLE. RELIAN CE WAS ALSO PLACED ON VARIOUS CASE LAWS. HOWEVER AO DID NOT FIND FAVO UR WITH THIS SUBMISSION AND LEVIED THE PENALTY AMOUNTING TO RS.5 72 223/- BEING 100% OF TAX SOUGHT TO BE EVADED. 3. THE LD. CIT(A) DELETED THE PENALTY VIDE PARAS 3 & 4 WHICH ARE AS UNDER: 3. I HAVE CONSIDERED THE ISSUE. IN CIT. V ATUL MOHAN BINDAL 317 I.T.R. 1 (S.C.) THE APEX COTRT HELD THAT FOR APPL ICABTHTY OF SECTION 271(1)(C ) THE CONDITIONS STATED THEREIN M UST EXISTS. THE CONDITIONS ARE THAT THE ASESSEE SHOULD HAVE CONCEA LED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PART ICULARS OF SUCH INCOME BEFORE THE PENALTY U/S 271(1)(C ) COULD BE LEVIED. THIS HAS BEEN REITERATED IN A RECENT DECISION OF THE AP EX COURT IN C.I.T. V RELIANCE PETRO PRODUCTS P. LTD 322 I.T.R. 158 WHEREIN APEX COURT INTERPRETED THE MEANING OF THE EXPRESS IONS CONCEALMENT INACCURATE & AND PARTICULARS USE D IN CLAUSE (C) OF SECTION 271(1) AND HELD THAT EVERYTHING WOU LD DEPEND UPON THE RETURN OF INCOME FILED BECAUSE THAT WAS T HE ONLY DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PARTIC ULARS OF INCOME. THE APEX COURT HELD THAT WHEN SUCH PARTICU LARS ARE TO BE INACCURATE THE LIABILITY OF PENALTY WOULD ARISE . READING THE WORDS PARTICULARS IN CONJUNCTION WITH THE WORD INACCURATE THE APEX COURT HELD THAT THEY ONLY MEAN THAT THE D ETAILS SUPPLIED IN THE RETURN WHICH WERE NOT ACCURATE NO T EXACT OR CORRECT NOT ACCORDING TO TRUTH OR ERRONEOUS AND UNLESS THERE IS A FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSE E IN THE RETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE THERE WOULD BE NO QUESTION OF INVITING THE PENALTY U/S 271(1)( C) . THE APEX ITA NO.6191 OF 2010 3 COURT FURTHER HELD THAT MERE MAKING OF THE CLAIM W HICH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO FU RNISHING INACCURATE PARTICULARS OF INCOME OF THE ASSESSEE AND SUCH CLAIM MADE IN THE RETURN CANNOT AMOUNT TO INACCURATE PAR TICULARS. THE APEX COURT HELD THAT IF THE ASSESSEE HAS FURNISHED ALL THE DETAILS OF ITS EXPENDITURE AS WELL AS INCOME IN ITS RETURN WHICH DETAILS IN THEMSELVES WERE NOT FOUND TO BE INACCURATE NOR COULD BE VIEWED AS THE CONCEALMENT OF INCOME ON ITS PART I T WAS UPTO THE AUTHORITIES TO ACCEPT ITS CLAIM IN THE RETURN OR NOT. HONBLE COURT HELD THAT MERELY BECAUSE THE ASSESSEE HAD CL AIMED THE EXPENDITURE WHICH CLAIM WAS NOT ACCEPTED OR WAS N OT ACCEPTABLE TO THE REVENUE THAT BY ITSELF WOULD NO T ATTRACT THE PENALTY U/S.271(1)(C ). THE APEX COURT WENT ON TO HOLD THAT IF THE CONTENTION OF THE REVENUE IS ACCEPTED WHEN IN CASE OF EVERY RETURN WHERE THE CLAIM MADE IS NOT ACCEPTABLE BY T HE AO FOR ANY REASON THE ASSESSEE WILL INVITE PENALTY U/S.2 71(1)(C). 4. IT IS SEEN IN THE PRESENT CASE THAT THERE IS NO FINDING OF THE AO THAT THE APPELLANT HAS CONCEALED THE PARTIC ULAR OF ITS INCOME. FURTHER THERE IS NO FINDING OF THE AO THA T THE PARTICULARS OF INCOME OR EXPENDITURE FURNISHED IN THE RETURN WERE FOUND TO BE INACCURATE INCORRECT ERRONEOUS OR FALSE. THE APPELLANT FURNISHED ALL THE PARTICULARS OF PAYMENT EXCISE DUTY AND CONTRIBUTIONS TO THE PF. THE AC MADE THE IMPUG NED DISALLOWANCES BASED ONLY ON THOSE PARTICULARS. THE APPELLANT MADE THE CLAIMS WHICH IN THE OPINION OF THE AO WER E NOT ADMISSIBLE DEDUCTIONS. THE PARTICULARS WERE TRUE A ND CORRECT AND ONLY THE CLAIM OR INFERENCE DIFFERED. THIS IS ONLY A CHANGE OF OPINION AND DOES NOT INVITE LEVY OF PENALTY U/S. 2 71(1)(C). I THEREFORE CANCEL THE PENALTY IMPOSED OF RS.5 72 22 4. 4. BEFORE US LD. DR STRONGLY SUPPORTED THE ORDER O F THE ASSESSING OFFICER. 5. ON THE OTHER HAND THE LD. COUNSEL OF THE ASSESS EE WHILE SUPPORTING THE ORDER OF THE CIT(A) ALSO RELIED ON T HE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. RELIAN CE PETRO PRODUCTS PVT. LTD. [322 ITR 158]. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND FIND THAT PENALTY HAS BEEN BASICALLY LEVIED ON THE BASIS OF T HE TWO ADDITIONS MAINLY ON ACCOUNT OF DISPUTED LIABILITY OF EXCISE D UTY AND LATE PAYMENT ITA NO.6191 OF 2010 4 OF EMPLOYEES CONTRIBUTION TO P.F. BOTH ITEMS HAD A LREADY BEEN DECLARED IN THE RETURN AND HAVE BEEN DISALLOWED ONL Y BECAUSE OF TECHNICAL REASONS. THE SAME CANNOT BE CONSTRUED AS CONCEALMENT OF INCOME OR FILING OF INACCURATE PARTICULARS AND THE REFORE IT IS NOT A FIT CASE FOR LEVY OF PENALTY. THE LD. CIT(A) HAS CORREC TLY DELETED THE PENALTY ON THE BASIS OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS PVT. LT D. [SUPRA]. THEREFORE WE DECLINE TO INTERFERE IN THE ORDER OF THE LD. CIT(A) AND CONFIRM THE SAME. 7. IN THE RESULT APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 1 8/11/2011. SD/- SD/- (B.R.MITTAL) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 28/11/2011. P/-*