Income Tax Appellate Tribunal - Kolkata
Mida & Co. (P) Ltd., Kolkata vs Department Of Income Tax
आयकर अपीलीय अधीकरण, Ûयायपीठ - " िस" कोलकाता,
IN THE INCOME TAX APPELLATE TRIBUNAL "C" BENCH: KOLKATA
(सम¢)Before ौी महावी
महावीर
वीर िसंह, Ûयायीक सदःय एवं/and ौी,
ौी सी.डȣ.राव लेखा सदःय)
[Before Hon'ble Sri Mahavir Singh, JM & Hon'ble Shri C. D. Rao, AM]
आयकर अपील संÉया / I.T.A Nos. 926 & 927/Kol/2009
िनधॉरण वषॅ/Assessment Years : 2003-04 & 2004-05
Assistant Commissioner of Income-tax, Vs M/s. Mida & Co. (P) Ltd.
Cir-4, Kolkata. (PAN - AABCM 9743 N)
(अपीलाथȸ/Appellant) (ू×यथȸ/Respondent)
For the Appellant: Shri S. K. Malakar
For the Respondent: Shri S. Bandyopadhyay
आदे श/ORDER
Per Mahavir Singh, JM ( महावीर िसंह, Ûयायीक सदःय):
सदःय These two appeals by revenue are arising out of the orders of CIT(A)-IV, Kolkata in Appeal Nos. 89/CIT(A)-IV/-6-07 & 17/CIT(A)-IV/07-08, both dated 27.01.2009. Assessments were framed by DCIT, Cir-4, Kolkata for Assessment Year 2003-04, vide dated 13.3.2006 and by ACIT, Cir-4, Kolkata for assessment year 2004- 05 u/s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") vide dated 13.12.2006. The penalties in dispute were levied by ACIT, Circle-4, Kolkata u/s 271(1)(c) of the Act vide his orders dated 27.9.2006 and 29.6.2007 respectively.
2. The only common issue in these two appeals of the revenue is against the order of CIT(A) deleting the penalty levied by Assessing Officer u/s. 271(1)(c) of the Act in respect of disallowance of excess claim of deduction of the assessee u/s. 80HHC of the Act. For this, revenue has raised the following identical grounds except variance in amount:
"1. On the facts and on law the Ld. CIT(A) has erred in deleting the penalty u/s. 271(1)(c) amounting to Rs.11,75,597/- (for Assessment Year 2003-04 and Rs.68,04,309/- (for Assessment Year 2004-05) observing that there was no deliberate attempt by the assessee to claim excess deduction u/s. 80HHC whereas deliberate concealment or furnishing of inaccurate particulars of income is not a pre-condition for levy of penalty."
2 ITA 926&927/K/2009 Mida & Co. (P) Ltd. A.Y.03-04&04-05
3. Since the issue is common and facts are exactly identical, we will decide this issue by this consolidated order.
4. The brief facts leading to the above issue are that the assessee has made claim u/s. 80HHC for export business. In both the years the assessment was framed u/s. 143(3) of the Act, thereby making disallowance u/s. 80HHC of the Act. In respect to assessment year 2003-04, the assessee filed report in Form No. 10CCAC in respect of claim of deduction u/s. 80HHC of the Act in which total export turnover was shown at Rs.9,17,32,565/- without taking into consideration the following items:-
"i) Amount not received till the prescribed date .... 14,42,243/-
ii) Sale to export house ..... 43,43,250/-
iii) Freight ..... 30,71,568/-"
5. The Assessing Officer in his penalty order as well as the assessment order noted that assessee failed to deduct freight amount of Rs.30,71,568/- from the total turnover which resulted in distortion of the claim of deduction u/s. 80HHC. In respect to assessment year 2004-05, the Assessing Officer noted that the assessee has claimed 100% as against the allowable claim of 30% to the assessee in the year under consideration on the basis of audit report. The report of the auditor furnished along with return computed deduction u/s. 80HHC at 30% but in Form No.10CCAC the auditor inadvertently certified the claim at 100% instead of 30% as provided. But the Assessing Officer in spite of this fact levied the penalty. CIT(A) deleted the penalty.
6. We have heard rival submissions and gone through facts and circumstances of the case. We find that the assessee is a 100% export oriented unit in the line of processing and export 'Mango Chatni', Pickles etc. It has filed statutory audit report and auditor's report in prescribed Form No.10CCAC for the claim of deduction u/s.
80HHC in both years. The assessee in both the assessment years, in view of auditor's report in prescribed Form No. 10CCAC made claim of deduction u/s. 80HHC, in assessment year 2003-04 excluding freight amount from total turnover and in assessment year 2004-05 at 100% instead of 30%. We find that the assessee has neither concealed the particulars of income nor furnished inaccurate particulars of such income. The assessee has merely made a claim of deduction u/s. 80HHC which has been disallowed by Assessing Officer and computed according to the provisions of the Act.
3 ITA 926&927/K/2009 Mida & Co. (P) Ltd. A.Y.03-04&04-05 Even it is not the case of Revenue that details and materials are not available on record. We further find that once the facts are clearly available on records, the assessee has not tried to conceal the particulars of income and moreover in disallowance of deduction merely on technical and on the basis of auditor's report, penalty cannot be levied for concealment of income and this view of our's is fortified 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."
In view of the above facts, we are of the view that CIT(A) has rightly deleted the penalty levied by Assessing Officer and we confirm the same. This issue of Revenue's appeals is dismissed.
7. In the result, the appeals of the revenue are dismissed.
8. Order pronounced in open court.
Sd/- Sd/-
सी.डȣ
सी डȣ.राव
डȣ राव लेखा सदःय वीर िसंह, Ûयायीक सदःय
महावी
महावीर
(C. D. Rao) (Mahavir Singh)
Accountant Member Judicial Member
तारȣख)
तारȣख) Dated 18th day of April, 2011
(तारȣख
वǐरƵ िनǔज सिचव Jd.(Sr.P.S.)
4 ITA 926&927/K/2009 Mida & Co. (P) Ltd. A.Y.03-04&04-05 आदे श कȧ ूितिलǒप अमेǒषतः- Copy of the order forwarded to:
1. अपीलाथȸ/APPELLANT - ACIT, Circle-4, Kolkata.
2 ू×यथȸ/ Respondent, M/s. Mida & Co. (P) Ltd., P-15/2/1, Southern Avenue, Kolkata-700 020.
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.