Income Tax Appellate Tribunal - Ahmedabad
Gujarat State Road Transport Corpn. ... vs Assessee on 11 May, 2016
आयकर अपील य अ
धकरण, अहमदाबाद यायपीठ, अहमदाबाद।
IN THE INCOME TAX APPELLATE TRIBUNAL
" B " BENCH, AHMEDABAD
BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER
AND SHRI S.S.GODARA, JUDICIAL MEMBER
आयकर अपील सं./ ITA No. 1178/Ahd/2013
For Asstt.Year : 2005-06
Gujarat State Road Transport Dy.CIT
Corpn. Vs Circle-4
Central Workshop Ahmedabad
Naroda Patia
Naroda, Ahmedabad
(PAN: AAACG 5587 H
अपीलाथ / (Appellant) यथ / (Respondent)
Assessee by : Shri Sunil Talati, CA
Revenue by : Shri Ashish Pophare, Sr.DR
सन
ु वाई क तार ख/ Dateof Hearing : 25/04/2016
घोषणा क तार ख / Date of Pronouncement: 11/05/2016
आदे श/O R D E R
PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER:-
This appeal by the assessee is directed against the order of the Learned Commissioner of Income Tax (Appeals)-VIII, Ahmedabad dated 08/02/2013 for Assessment Year 2005-06.
2. The relevant facts as culled out from the materials on record are as under:-
2.1. Assessee is a Corporation of Government of Gujarat providing transport and other allied services. Assessee filed its original return of income declaring total loss of Rs.35,51,88,507/-. Thereafter, assessee filed its revised return declaring a loss of Rs.93,16,88,230/-. The case was selected ITA No.1178/Ahd/2013 Guj.State Road Transport Corpn. vs. DCIT For AY 2005-06 2 for scrutiny and thereafter assessment was framed u/s.143(3) of the Act vide order dated 14/12/2007 and the total loss, before set off of business loss of earlier years, was determined at Rs.52,20,15,555/- by making various additions/disallowances including addition of Rs.4,39,81,000/- on account of non-accounting of discount receivable from Indian Oil Corporation (IOC).
On the aforesaid addition made on account of discount receivable, AO vide order dated 30/03/2011 held that the assessee had furnished inaccurate particulars and had made wrong and excess claim of expenditure and was therefore liable for penalty u/s.271(1)(c) of the Act and, accordingly, levied penalty of Rs.1,60,93,748/-. Aggrieved by the order of the AO, assessee carried the matter before the ld.CIT(A), who confirmed the penalty levied by the AO vide order dated 08/02/0213. Aggrieved by the aforesaid order of the ld.CIT(A), assessee is now in appeal before us and has raised following grounds:-
"Your appellant being aggrieved by the Order passed by the learned Commissioner of Income Tax (Appeals)-VIII, Ahmedabad in appeal against order u/s. 271(1)(c) of the Income Tax Act presents this appeal against the same on the following amongst other grounds.
1. The learned C.I.T. (Appeals) has erred in confirming the levy of penalty of Rs. 160,93,748/- u/s. 271(1)(c) of the Income tax Act. It is submitted that on the facts and circumstances of the case, penalty is not leviable as there was no concealment of income or furnishing of inaccurate parties and the penalty levied of Rs. 160,93,748/-be deleted.
2 . The learned C.I.T. (Appeals) failed to appreciate that all facts were furnished & nothing was withheld from knowledge of Assessing Officer. There was no malafide in not showing discount receivables from IOC in the year under consideration & that too because of genuine grounds. It be so held now and penalty be deleted.
3. The order passed by the learned C.I.T. (Appeals) is bad in law and contrary to the provisions of law and facts. It is submitted that the same be held so now.ITA No.1178/Ahd/2013
Guj.State Road Transport Corpn. vs. DCIT For AY 2005-06 3
4. Your appellant craves leave to add, alter and/or to amend all or any of the grounds before the final hearing."
3. Before us, the AR submitted that though assessee has raised various grounds, but the solitary issue in the present appeal is with respect to levy of penalty u/s.271(1)(c) of the Act.
4. Before us, ld.AR reiterated the submissions as were made before the AO and ld.CIT(A) and further submitted that as per the agreement of the assessee with 'IOC', assessee was entitled for special discount on receipt of credit notes from IOC. He submitted that since the assessee did not receive the relevant credit-notes till the year end, the same was not included in the income, but however, subsequently, when the credit notes were received in F.Y. 2006-07, the amount was included in the income in FY 2006-07 relevant to AY 2007-08. He further submitted that the non-accounting of discount in the year under consideration was not on account of any malafide intention more so, when the assessee is a Government Corporation and has brought forward losses and that assessee would not gain anything financially by not including the discount in the year under consideration. In support of his contention, that the aforesaid discount has been accounted for in subsequent year, he placed on record the relevant evidences. He further submitted that the assessee has neither furnished any inaccurate particulars of income nor has concealed any income and that the assessee has disclosed all the material facts and there was no concealment of income. He also placed reliance on the judgement of the Hon'ble Apex Court rendered in the case of CIT vs. Reliance Petroproducts Pvt.Ltd. reported at (2010) 322 ITR 0158 (SC).
4.1. The ld.Sr.DR supported the orders of the authorities below.
ITA No.1178/Ahd/2013Guj.State Road Transport Corpn. vs. DCIT For AY 2005-06 4
5. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below as well as the judgement relied upon by the ld.counsel for the assessee. The issue in the present appeal is with respect to levy of penalty u/s.271(1)(c) of the Act on the discount from IOC that was not accounted by the assessee. Before us, it was contended that the amount was not accounted in the books of account as the assessee had not received the relevant credit notes from IOC in the accounting year, but the same was accounted and offered to tax in subsequent assessment years. The aforesaid submission of assessee has not been controverted by the Revenue by placing any contrary material on record. It is a settled law that the penalty and assessment proceedings are different proceedings. For levy of penalty apart from falsity of the explanation given by the assessee, the Department must have before it cogent material or evidence from which it could be inferred that the assessee has concisely concealed the particulars of income or had deliberately furnished inaccurate particulars of income. It is well settled that the parameters of judging the justification for addition made in the assessment case of the asssessee is different from the penalty imposed on account of concealment of income or filing inaccurate particulars of income and that certain disallowance/addition could legally be made in the assessment proceedings on the preponderance of probabilities but no penalty could be imposed u/s. 271(1)(c) of the Act on the preponderance of probabilities and Revenue has to prove that the claim of expenses by the assessee was not genuine or was inflated or the non-inclusion of income was to reduce its tax liability. Considering the aforesaid facts and peculiar facts of the case, and considering the fact that the amount has been offered to tax in subsequent assessment years and the assessee being a Government Corporation, we are of the view that in the present case no case for levy of penalty u/s. 271(1)(c) of the Act has been made out. We thus ITA No.1178/Ahd/2013 Guj.State Road Transport Corpn. vs. DCIT For AY 2005-06 5 direct the deletion of penalty u/s. 271(1)(c) of the Act. Thus, the ground of assessee is allowed.
6. In the result, assessee's appeal stands allowed.
Order pronounced in the Court on 11 May, 2016 at Ahmedabad.
Sd/- Sd/-
(S.S. GODARA) (ANIL CHATURVEDI
JUDICIAL MEMBER ACCOUNTANT MEMBER
Ahmedabad; Dated 11 /05/2016
ट .सी.नायर, व.$न.स./T.C. NAIR, Sr. PS
आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ' / The Appellant
2. ()यथ' / The Respondent.
3. संबं
धत आयकर आयु+त / Concerned CIT
4. आयकर आयु+त(अपील) / The CIT(A)-VIII, Ahmedabad
5. .वभागीय ($त$न ध, आयकर अपील य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड2 फाईल / Guard file.
ु ार/ BY ORDER,
आदे शानस e Copy//
//True Copy//
उप/सहायक पंजीकार (Dy./Asstt.Registrar)
आयकर अपील"य अ#धकरण, अहमदाबाद / ITAT, Ahmedabad
1. Date of dictation .. 25.4.16 .dictation-pad 8 pages attached with this file
2. Date on which the typed draft is placed before the Dictating Member . .5..5.16
3. Other Member...
4. Date on which the approved draft comes to the Sr.P.S./P.S.................
5. Date on which the fair order is placed before the Dictating Member for pronouncement......
6. Date on which the fair order comes back to the Sr.P.S./P.S....... 11.5.16
7. Date on which the file goes to the Bench Clerk..................... 11.5.16
8. Date on which the file goes to the Head Clerk..........................................
9. The date on which the file goes to the Assistant Registrar for signature on the order..........................
10. Date of Despatch of the Order............