SUBHASH CHAND GUPTA, Jaipur v. ITO, BEHROR

ITA 730/JPR/2010 | 2003-2004
Pronouncement Date: 28-07-2011 | Result: Allowed

Appeal Details

RSA Number 73023114 RSA 2010
Assessee PAN REDIN2009W
Bench Jaipur
Appeal Number ITA 730/JPR/2010
Duration Of Justice 1 year(s) 1 month(s) 13 day(s)
Appellant SUBHASH CHAND GUPTA, Jaipur
Respondent ITO, BEHROR
Appeal Type Income Tax Appeal
Pronouncement Date 28-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 28-07-2011
Assessment Year 2003-2004
Appeal Filed On 14-06-2010
Judgment Text
1 ITA 730-10 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 730/JP/2010 ASSTT. YEAR : 2003-04. SHRI SUBHASH CHAND GUPTA VS. THE INCOME-TAX OFFI CER PROP. M/S. R.K. EXPORTS WARD BEHROR SHAHPURA. BEHROR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANISH AGARWAL RESPONDENT BY : SHRI K.C. MEENA ORDER DATE OF ORDER : 28/07/2011. PER R.K. GUPTA J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST UPHOLDING T HE LEVY OF PENALTY UNDER SECTION 271(1)(C) AT RS. 27 600/- RELATING TO ASSESSMENT Y EAR 2003-04. 2. AN ADDITION OF RS.57 913/- WAS MADE UNDER SECTIO N 43B BESIDES AN ADDITION OF RS. 3 612/-ON ACCOUNT OF DISALLOWANCE OF TRAVELING EXPENSES. 3. THE AO INITIATED PENALTY PROCEEDINGS ON ACCOUNT OF BOTH THE ADDITIONS AND AFTER CONSIDERING THE SUBMISSIONS THE AO FOUND THAT THE ASSESSEE HAS COMMITTED DEFAULT UNDER THE PROVISIONS OF SECTION 271(1)(C) THEREFORE HE LEVIED PENALTY OF RS. 27 600/-. THE LD. CIT (A) HAS ALSO CONFIRMED THE ORDER OF AO. 4. THE LD. COUNSEL OF THE ASSESSEE HAS FILED WRITTE N SUBMISSIONS. 5. ON THE OTHER HAND LD. D/R HAS PLACED RELIANCE O N THE ORDER OF LD. CIT (A). 2 6. AFTER CONSIDERING THE ORDERS OF THE AO AND LD. C IT (A) AND THE WRITTEN SUBMISSIONS WE ARE OF THE VIEW THAT ASSESSEE DESER VES TO SUCCEED IN HIS APPEAL. THE DISALLOWANCE MADE UNDER SECTION 43B IN OUR VIEW IS PENAL IN NATURE. THE ASSESSEE HAS SHOWN THIS LIABILITY IN BALANCE SHEET YEAR AFTER YE AR. THE ASSESSEE HAS NOT CLAIMED ANY DEDUCTION IN THE PROFIT& LOSS ACCOUNT AGAINST THIS AMOUNT. THE ASSESSEE WAS DISPUTING THIS LIABILITY AND THEREFORE IT WAS SHOWN IN THE BALANCE SHEET. ULTIMATELY THE ASSESSEE HAS PAID THIS LIABILITY ON 27.8.2009 COPY OF CHALL AN IS PLACED IN THE COMPILATION. THEREFORE IN OUR VIEW WHEN THE FIGURE OF A PARTIC ULAR AMOUNT WAS SHOWN BY THE ASSESSEE IN ITS BALANCE SHEET IT CANNOT BE CONSIDERED THAT ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR DISALLOWANCES. IN THE CASE OF GUJARAT ST ATE CO-OPERATIVE HOUSING FINANCE CORPORATION LTD. 134 TTJ 7 IT HAS BEEN HELD THAT O N ACCOUNT OF DISALLOWANCE UNDER SECTION 43B PENALTY IS NOT LEVIABLE AS ASSESSEE HAV ING FILED COMPLETE DETAILS OF LOANS TAKEN FROM LIC HUDCO ETC. TO WHOM INTEREST WAS PA ID OR PAYABLE. 6.1. IN THE CASE OF RELIANCE PETROPRODUCTS (P) LTD. 322 ITR 158 (SC) THE HONBLE SUPREME COURT HAS HELD THAT INFORMATION GIVEN IN TH E RETURN IF FOUND INCORRECT AND MAKING AN INCORRECT CLAIM DOES NOT AMOUNT TO CONCEA LMENT OF PARTICULARS. IT HAS BEEN HELD THAT WHERE THERE IS NO FINDING THAT ANY DETAIL S SUPPLIED BY ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE THERE IS NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C). 6.2. IN CASE OF DYNAVISION LTD 121 ITD 461 (CHENNA I) (TM) IT HAS BEEN HELD THAT SECTION 43B CAN ONLY BE INVOKED WHEN ASSESSEE CLAI MS DEDUCTION OF ANY SUM PAYABLE BY WAY OF TAX OR DUTY UNDER ANY LAW FOR TIME BEING I N FORCE AND AS SUCH WHERE NEITHER 3 SUCH DEDUCTION IS CLAIMED NOR CHARGE IS MADE TO PRO FIT AND LOSS ACCOUNT THERE IS NO QUESTION OF DISALLOWING AMOUNT. 6.3. TAKING INTO CONSIDERATION ALL THESE CASES AND THE SUBMISSIONS OF THE ASSESSEE WE ARE OF THE VIEW THAT AO AND LD. CIT (A) WERE NOT J USTIFIED IN LEVYING PENALTY CONFIRMING THE SAME. IN FACT THE AO RELIED UPON THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF RAGHUVIR SONI 258 ITR 239 (RAJ.) WHERE IN IT HAS BEEN HELD THAT RELATING TO LEVY OF PENALTY FOR CONCEALMENT OF INCOME HAVE MAT ERIALLY ALTERED WITH EFFECT FROM APRIL 1 1975 AND AS PER THIS DECISION IT IS NOTED THAT W HERE EXPLANATION OFFERED BY ASSESSEE WAS FOUND NOT SATISFACTORY THEN IN VIEW OF CLAUSE (A) A ND (B) IT CAN BE CONCLUDED THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME A ND THEREFORE THE LEVY OF PENALTY WAS HELD JUSTIFIED. HOWEVER IN OUR CONSIDERED VIEW THE FACTS OF THE PRESENT CASE ARE TOTALLY DIFFERENT AS MAIN ADDITION WAS MADE UNDER SECTION 4 3B AND NO DEDUCTION WAS CLAIMED OF THIS AMOUNT AS THE SAME WAS SHOWN IN THE LIABILITY SIDE IN THE BALANCE SHEET WHICH WAS LATER ON CLEARED IN 2009 WHEN DEDUCTION OF SAME AMO UNT WAS MADE AS STATED BY LD. A/R DURING THE COURSE OF HEARING OF APPEAL. ACCORDINGL Y WE HOLD THAT THE RATIO OF DECISION OF HONBLE RAJASTHAN HIGH COURT IS NOT APPLICABLE ON T HE FACTS OF THE PRESENT CASE AS FACTS WERE TOTALLY DIFFERENT. IN VIEW OF THESE FACTS AN D CIRCUMSTANCES AND IN VIEW OF OUR FOREGOING DISCUSSION WE HOLD THAT ON THE FACTS OF THE PRESENT CASE PENALTY IS NOT LEVIBLE. ACCORDINGLY WE CANCEL THE LEVY OF PENALTY. 7. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . 8. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28. 7.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER 4 JAIPUR D/- COPY FORWARDED TO :- SHRI SUBHASH CHAND GUPTA SHAHPURA. THE ITO WARD BEHROR BEHROR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 730/JP/2010) BY ORDER AR ITAT JAIPUR.