Income Tax Appellate Tribunal - Chandigarh
Joint Commissioner Of Income Tax (Osd), ... vs M/S Vardhma Holdings Ltd.,, Ludhiana on 15 November, 2017
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IN THE INCOME TAX APPELLATE TRIBUNAL
CHANDIGARH BENCHES 'B', CHANDIGARH
BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER &
Dr. B.R.R. KUMAR, ACCOUNTANT MEMBER
ITA No. 1137/Chd/2011
Assessment Year: 2003-04
M/s Vardhman Holdings Limited, Vs. The ACIT, Circle-1,
Ludhiana Ludhiana
PAN No. AABCV8088P
&
ITA No. 1149/Chd/2011
Assessment Year: 2003-04
The JCIT (OSD), Circle-1, Vs. M/s Vardhman Holdings Limited,
Ludhiana Ludhiana
PAN No. AABCV8088P
(Appellant) (Respondent)
Appellant By : Sh. Subhash Aggarwal
Respondent By : Smt. Chanderkanta
Date of hearing : 23.08.2017
Date of Pronouncement : 15.11.2017
ORDER
Per Sanjay Garg, Judicial Member:
The captioned appeals, one by the assessee and other by the Revenue, have been preferred against the order of the Commissioner of Income Tax (Appeals), [hereinafter referred to as CIT(A)]-II, Ludhiana dated 16.09.2011.
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2. The assessee is aggrieved by the action of the CIT(A) in confirming the levy of penalty on certain issues / additions made by the Assessing officer whereas the Revenue is aggrieved by the action of the CIT(A) in deleting the penalty on certain issues / additions made by the Assessing officer.
3. At the outset, the Ld. AR of the assessee has brought our attention to the impugned assessment order as well as the penalty order passed u/s 271(1)(c) of the Income-tax Act, 1961 (in short 'the Act') and has submitted that the additions in this case were made by the Assessing officer on account of disallowance of deduction claimed by the assessee u/s 10B, 80IB, sales tax subsidy as to whether the same was capital receipt or revenue receipt, issue of deduction claimed by the assessee on DEPB, issue of deduction u/s 80HHC etc. He has further submitted that additions in this respect were made by lower authorities' because of the difference of opinion. Though the assessee was under bonafide belief that it was legally entitled to claim the aforesaid deductions / quantum of deductions. However, the Assessing officer was of the other opinion and has thus reduced / disallowed the deductions to some extent. He, therefore, submitted that it was neither a case of furnishing of inaccurate particulars of income nor of concealment of income.
4. The Ld. AR has further submitted that even otherwise the income of the assessee computed under normal provisions despite the aforesaid disallowance was negative i.e. in losses. The tax has been levied by the Assessing officer under the provisions of section 115JB of the Act. He in this context has relied upon the decision of the Hon'ble Delhi High Court in the case of 'CIT Vs. Nalwa Sons Investments Ltd.' in ITA No. 3 1420/2009 dated August 26, 2010 reported in [2010] 194 taxman.387 (Delhi).
5. The Ld. DR, on the other hand, has relied the findings of the lower authorities.
6. We have considered the rival contentions and have also gone through the record. Admittedly, in this case the income under the normal provisions of the assessee has been assessed in losses carried forward to next year at Rs. (-) 5,27,82,779/-. However, the tax has been computed under section 115JB of the Act at Rs. 2,67,10,292/-. The Hon'ble Delhi High Court in the case of 'CIT Vs. Nalwa Sons Investments Ltd' in ITA No. 1420/2009 dated August 26.2010 has held that when the assessment as per normal procedure has not been acted upon but the basis of assessment is made on the deemed income assessed u/s 115JB of the Act being higher of the two and the tax is thus paid on the income assessed u/s 115JB of the Act, any concealment of income found under normal computation has no role to play and such concealment did not lead to tax evasion at all. As per law laid down by the Hon'ble High Court, penalty cannot be imposed on tax sought to be evaded under normal computation when the normal computation was in fact not acted upon while assessing the income of the assessee. The SLP against the said order of the Hon'ble Delhi High Court is also dismissed by the Hon'ble Supreme Court vide order dated 4.5.2012 reported in [2012] 21 taxman 184 (SC). Even otherwise, we find it is not a case of concealment of income or furnishing of inaccurate particulars of income as discussed above, the assessee under bonafide belief had claimed the deduction and though some of which has been rejected or amount of deduction had been reduced while making the assessment but that itself is 4 not sufficient to hold it is a case of concealment of income or furnishing of inaccurate particulars of income
7. In view of this, we do not find any justification on the part of the lower authorities in confirming the levy of penalty. In view of the above, the appeal of the assessee is allowed and the penalty confirmed by the CIT(A) is ordered to be deleted. The appeal of the Revenue, on the other hand, is hereby dismissed.
8. In the result, the appeal preferred by the assessee is allowed whereas the appeal of the Revenue stands dismissed.
Order pronounced in the Open Court on 15.11.2017 Sd/- Sd/-
(Dr. B.R.R. KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 15 t h Nov.,2017 Rkk Copy to: 1. The Appellant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR