Income Tax Appellate Tribunal - Kolkata
T.P. Roychowdhury & Co. Pvt. Ltd., ... vs Department Of Income Tax on 18 January, 2010
आयकर अपीलीय अधीकरण, Ûयायपीठ - " िस" कोलकाता,
IN THE INCOME TAX APPELLATE TRIBUNAL "C" BENCH: KOLKATA
(सम¢)Before ौी एस. भी. मेहरोऽा, लेखा सदःय एवं/and ौी महावीर िसंह, Ûयायीक सदःय)
[Before Hon'ble Shri S. V. Mehrotra, AM & Hon'ble Sri Mahavir Singh, JM]
आयकर अपील संÉया / I.T.A No. 729/Kol/2010
िनधॉरण वषॅ/Assessment Year: 2004-05
Deputy Commissioner of Income-tax, Vs. M/s. T. P. Roychowdhury & CO. Pvt. Ltd.
Circle-9, Kolkata. (PAN-AABCV 1014 D)
(अपीलाथȸ/Appellant) (ू×यथȸ/Respondent)
For the Appellant: Shri S. K. Malakar
For the Respondent: Shri Arvind Agarwal
आदे श/ORDER
महावीर िसंह, Ûयायीक सदःय:
Per Mahavir Singh, JM/महावीर सदःय
This appeal by revenue is arising out of the order of CIT(A)-VIII, Kolkata in Appeal No.29/CIT(A)-VIII/Kol/09-10 vide dated 18.01.2010. The assessment was framed by ACIT, Circle-9, Kolkata u/s.147/143(3) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") for Assessment Year 2004-05 vide his order dated 15.10.2008. The penalty in dispute was levied by ACIT, Circle-9, Kolkata u/s 271(1)(c) of the Act vide his order dated 29.04.2009.
2. The only issue in this appeal of revenue is against the order of CIT(A) deleting penalty levied by Assessing Officer u/s. 271(1)(c) of the Act on the claim of losses on exempted income and carry forward for subsequent years. For this, revenue has raised following three grounds:
"1. Whether Ld. CIT(A) was justified in deleting the penalty u/s. 271(1)(c) on the ground that there is no intention to defraud Revenue on claiming losses on exempted income and carry forward for subsequent years.
2. Whether Ld. CIT(A) was justified in deleting the penalty u/s. 271(1)(c) on bonafide belief and full facts had been placed on record. However, assessee had claimed excess depreciation.
3. Whether Ld. CIT(A) was justified in deleting the penalty u/s. 271(1)(c) on the ground that there is no malafide intention of the assessee for claiming excess deduction u/s. 35AC."
3. The brief facts leading to the above issue are that the assessee filed its return of income for Assessment Year 2004-05 on 1.11.2004 declaring total income at Rs.4,26,21,730/-. Return of income was processed u/s. 143(1) of the Act on 30.5.2005. Subsequently, Assessing Officer initiated proceedings u/s. 147 of the Act for the reasons that the assessee has claimed Long Term Capital Loss on sale of units of UTI amounting to Rs.31,13,064/- wrongly, as any income 2 ITA 729/K/2010 T.P.Roychbowdhury & Co. Pvt. Ltd. A.Y.04-05 arising from transfer of capital asset being a unit of UTI-US 64 shall be exempt in assessment year 2004-05. Consequently, loss arising on transfer of units of US 64 cannot be set off against any income in the same year or subsequent years. Another reason that the assessee has charged excess depreciation of Rs.4,25,281/-. Similarly, the assessee has claimed 100% deduction u/s. 35AC of the Act for donation to Kalathur V. Subramania Iyer Memorial Trust, Industrial Training Institute 24, South Mada Street, Srinagar Colony, Chennai-15. In view of these reasons, the Assessing Officer initiated proceedings u/s. 147 r.w.s. 148 of the Act and by making disallowance computed the income as the assessee himself has declared these amounts and returned the income at Rs.4,34,25,259/- as against the original return of Rs.4,26,21,730/-. Assessing Officer initiated penalty proceedings on these items and levied penalty relying on the decision of Hon'ble Apex Court in the case of Union of India Vs. Dharmendra Textiles Processors (2008) 306 ITR 277 by giving following finding:
"The contention of the assessee is not accepted on the following grounds:
a. In view of judgment in the case of UOI Vs. Dharmendra Textiles Processors (SC), which has quashed all the previous judgments. Propositions laid down in the case of UOI Vs. Dharmendra Textiles Processors (SC) are:-
1. In the case of penalty what is intended is a civil obligation while in the case of prosecution what is intended is a criminal sentence.
2. Mens rea is not required to be proved in the case of penalty.
b. Assessee has stated that it has not availed the benefit of adjustment of loss but as per provisions of the Act, losses can be carried forward for a period of eight year i.e. upto 2012-2013, which has not lapsed.
Thus, in my opinion, the assessee has furnished inaccurate particulars of income."
4. Aggrieved, assessee preferred appeal before CIT(A), who in appeal, deleted the penalty by giving following findings:
"In these grounds the appellant is disputing the Assessing Officer (A.O)'s decision to impose penalty under Sec. 271(1)(c) of the Income Tax Act. It is seen from the A.O's order that he has relied principally on the decision of the Hon'ble Supreme Court in the case of Dharmendra Textiles Processors (306 ITR 277). The appellant has referred a number of judicial pronouncements to support its stand against levy of penalty. The decisions referred to by both the A.O. and the appellant have been perused.
In the instant case, the additions which form the bases for levy of penalty are seen to be
(i) Wrong claim of Capital Loss
(ii) Excess charge of Depreciation
(iii) Excess claim of deduction under Sec. 35AC of the Act.
3 ITA 729/K/2010 T.P.Roychbowdhury & Co. Pvt. Ltd. A.Y.04-05 From the appellant's submission before the A.O., it is seen that the crux of the appellant's case is that these claims were made inadvertently. It has also elaborated on the circumstances which led to the placing of such claims.
The decision of the Hon'ble Apex Court in the Dharmendra Textiles Processors (Supra) has been further explained by its decision in the case of M/s. Rajasthan Spinning & Weaving Mills (224 CTR 1). The said judgement has also been referred to by the Hon'ble ITAT, Mumbai and Pune Benches in their order in the cases of VIP Industries Ltd. [122 TIJ (Mumbai) 289] and Kanbay Software India Pvt. Ltd. [122 TTJ (Pune) 721] respectively, both of which have been relied on by the appellant.
The crux of the decision in the case of M/s. Dharmendra Textiles Processors as explained by the decision in the case of M/s. Rajasthan Spinning & Weaving Mills(Supra) is that levy of penalty under Sec. 271(1)(c) of the Income Tax Act would depend upon the existence of conditions stated in that section. In the case of VIP Industries & Kanbay Software India Pvt. Ltd., the Hon'ble Tribunal relying on the judgment rendered in the case of M/s. Rajasthan Spinning & Weaving Mills has held that the appellant has a statutory obligation to give correct and complete information with the return of income. Once this is done, no contravention of statutory obligation takes place and, accordingly, as per the Hon'ble Tribunal no penalty under Sec. 271(1)(c) of the income Tax Act is imposable. The interpretation of these recent judgments would show that for levy of penalty under Sec. 271(1)(c) of the Income Tax Act mens rea of the appellant, that is, its intention has to be seen and incorrect claim does not necessarily mean that incorrect particulars have been submitted.
With regard to the additions made in the instant case it is seen that the appellant has not claimed any benefit in subsequent years for erroneous claim of Long-Term Capital loss. The A.O. has mentioned in his order that "It might be possible that assessee would have adjusted this loss with other income of the subsequent years" but he does not dispute that no such adjustment of this loss was actually claimed by the assessee in the subsequent years. Under the circumstances, it cannot be said that the appellant had any intention to defraud Revenue. I am therefore, of the opinion that no penalty under Sec. 271(l)(c) of the Income Tax Act is imposable for the instant addition. The second addition/disallowance made was on account of excess depreciation claimed by the appellant. The appellant's case is that as the amount of wok-in-progress was transferred to the asset account, it was under the impression full depreciation would be allowable as the work-in-progress was in continuation from the beginning of the year. Under the circumstances, it is seen that the appellant has made the claim on the basis of a bonafide belief and full facts had been placed on record. I am, therefore, of the opinion that no penalty under Sec. 271(l)(c) of the Income Tax Act is leviable on this issue. The third issue is with the wrong claim of deduction under Sec. 35AC of the Act. The appellant's case is that the claim was made on the basis of consolidated certificate under Sec. 35AC of the Act which also included the contribution made in the earlier year. The appellant has sought to explain the wrong claim has been made due to oversight and human error. I am of the opinion that the appellant has a justifiable case. Preponderance of probability suggests that where a consolidated certificate is involved, it is quite possible for the person filing the return of income to make an erroneous claim. Under the circumstances, it cannot be said that the appellant had any malafide intention. Furthermore, in all the issues involved it is seen that the inaccuracies were found out from the assessment record itself. Thus, it cannot be said that the appellant had hid any fact from the scrutiny of the Department. I, therefore, hold that on the issues involved no penalty under Sec. 271(1)(c) of the Act is leviable and direct the A.O. to delete the same. These grounds of appeal are allowed in favour of the appellant."
Aggrieved, revenue is in appeal before us.
4 ITA 729/K/2010 T.P.Roychbowdhury & Co. Pvt. Ltd. A.Y.04-05
5. We have heard rival submissions and gone through facts and circumstances of the case. We find that assessee declared these amounts in its return in response to notice u/s. 148 i.e.
(i)Wrong claim of Capital Loss, (ii) Excess charge of Depreciation and (iii) Excess claim of deduction under Sec. 35AC of the Act. We find that these amounts were declared by the assessee in its accounts filed along with the original return of income and making a claim of deduction was inadvertent mistake on the part of the assessee. We further find that in respect to Long Term Capital Loss the assessee has not claimed any benefit in subsequent years for erroneous claim made, this has concurrently been held by the lower authorities and even now demonstrated before us by the Ld. Counsel for the assessee. Even the claim of depreciation and claim u/s. 35AC of the Act was made on the basis of consolidated certificate which includes the contribution made in the earlier years. In regard to depreciation, the amount of work-in- progress was transferred to asset account and it was the impression of the assessee that full depreciation is allowable on work-in-progress, which is continuation from the beginning of the year. We find that in its original return of income assessee has disclosed by way of filing accounts. The mere wrong claim of deduction does not amount to concealment and the Assessing Officer has not established beyond doubt that the explanation of the assessee is not a bonafide explanation. We find that the Assessing Officer has relied on the decision in the case of Dharmendra Textiles Processors (supra) wherein Hon'ble Apex Court has discussed the concept of 'Civil Liability' by holding that the penalty under the provision of section 271(1)(c) of the Act is a civil liability but willful concealment is not an essential ingredient for attracting civil liability as is the case in the matter of prosecution u/s. 276 of the Act. But subsequently, this decision was explained by Hon'ble Apex Court in the case of Union of India Vs. Rajasthan Spinning & Weaving Mills Ltd. (2009) 238 ELT 3 (SC), wherein considering the decision of Dharmendra Textiles Processors (supra) has explained that "Dharmendra Textiles's case did not stipulate that for every demand, penalty is an automatic consequence". We find that in the present case before us the claims on these three counts, of the assessee, had been duly certified by a Chartered Accountant and, therefore, the plea of the assessee that the claim was made under a bonafide mistake deserves to be accepted. Even we find that all primary facts were before the AO and there is no specific finding that the assessee furnished inaccurate particulars of income. Further, as observed by Hon'ble Apex Court in the case of Dilip N. Shroff Vs. JCIT (2007) 291 ITR 519 (SC) that before penalty can be levied u/s. 271(1)(c) of the Act, the AO, in view of the provisions of clause (b) of explanation 1, must write a finding that the assessee failed to prove that the explanation offered by him is not only bonafide but all the facts relating to same and material to the income were not disclosed by him. The Hon'ble Apex Court 5 ITA 729/K/2010 T.P.Roychbowdhury & Co. Pvt. Ltd. A.Y.04-05 observed that apart from assessee's explanation being not bonafide, the AO should also record a finding of fact that the assessee had not disclosed all the facts which were material to the computation of his income. In the present case, we find that the assessee had clearly indicated all the facts from which his income could be easily computed the only question that remains to be ascertained was the quantum of deductions i.e. claim of Capital Loss, Depreciation and claim of deduction under Sec. 35AC of the Act. Inadvertently, the assessee claimed excess deduction when he was actually entitled to lesser and this also he did on the basis of certificate of Chartered Accountant and audit done by him. Even this case on facts is supported by the decision of Hon'ble apex court in the case of CIT v. Reliance Petroproducts Pvt. Ltd. (2010) 322 ITR 174 (SC), wherein the Hon'ble apex court has held :-
"We are not concerned in the present case with the mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. In Webster's Dictionary, the word "inaccurate" has been defined as:
"not accurate, not exact or correct ; not according to truth ' erroneous ' as an inaccurate statement, copy or transcript."
We have already seen the meaning of the word "particulars" in the earlier part of this judgment. Reading the words in conjunction, they must mean the details supplied in the return, which are not accurate, not exact or correct, not according to truth or erroneous. We must hasten to add here that in this case, there is no finding that any details supplied by the assessee in its return were found to be incorrect or erroneous or false. Such not being the case, there would be no question of inviting the penalty under section 271(1)(c) of the Act. A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the return cannot amount to the inaccurate particulars."
As the wrong claim made by the assessee is on the basis of audited accounts and certificate issued by Chartered Accountant, which was before the Assessing Officer during the course of original assessment proceedings, the penalty on these facts and circumstances cannot stand. Accordingly, we confirm the order of CIT(A) deleting the penalty and this issue of the revenue is dismissed.
6. In the result, the appeal of the revenue is dismissed.
7. Order pronounced in open court.
Sd/- Sd/-
एस. भी. मेहरोऽा लेखा सदःय वीर िसंह, Ûयायीक सदःय
महावी
महावीर
(S. V. Mehrotra) (Mahavir Singh)
Accountant Member Judicial Member
तारȣख)
तारȣख) Dated: 31st May, 2011
(तारȣख
6 ITA 729/K/2010 T.P.Roychbowdhury &
Co. Pvt. Ltd. A.Y.04-05
वǐरƵ िनǔज सिचव Jd.(Sr.P.S.)
आदे श कȧ ूितिलǒप अमेǒषतः- Copy of the order forwarded to:
1. अपीलाथȸ/APPELLANT - D.C.I.T, Cir-9, Kolkata.
2 ू×यथȸ/ Respondent, M/s. T. P. Roychowdhury & Co. Pvt. Ltd., 171/1, M. G.
Road, Kolkata-700 007.
3. आयकर किमशनर (अपील)/ The CIT(A), Kolkata
4. आयकर किमशनर/CIT, Kolkata
5. वभािगय ूितनीधी / DR, Kolkata Benches, Kolkata
स×याǒपत ूित/True Copy, आदे शानुसार/ By order,
सहायक पंजीकार/Asstt. Registrar.