Income Tax Appellate Tribunal - Kolkata
M/S. Karry Overseas, Kolkata vs Department Of Income Tax on 15 December, 2011
आयकर अपीलीय अधीकरण, Ûयायपीठ " B" कोलकाता
IN THE INCOME TAX APPELLATE TRIBUNAL, "B" BENCH: KOLKATA
Before Hon'ble Sri Mahavir Singh, JM & Hon'ble Sri C.D. Rao, AM
(सम¢) ौी महावीर िसंह, Ûयायीक सदःय एवं ौी सी.डȣ.राव,, लेखा सदःय
आयकर अपील संÉया / I.T.A No. 487/Kol/2009
िनधॉरण वषॅ/Assessment Year : 2003-04
Asstt. Commissioner of Income-tax Vs. M/s. Karry Overseas
Circle-46, Kolkata PAN: AAFFK 6045E
(अपीलाथȸ /Appellant) (ू×यथȸ/Respondent)
आयकर अपील संÉया / I.T.A No. 1485/Kol/2010
िनधॉरण वषॅ/Assessment Year : 2004-05
Dy. Commissioner of Income-tax Vs. M/s. Karry Overseas
Circle-46, Kolkata PAN: AAFFK 6045E
(अपीलाथȸ /Appellant) (ू×यथȸ/Respondent)
अपीलाथȸ/ For the Appellant/Assessee: ौी़/ Shri A.K. Pramanick, ld. DR
ू×यथȸ/ For the Respondent/Department: ौी़/ Shri Subash Agarwal, ld.AR
सुनवाई कȧ तारȣख/Date of Hearing: 15-12-2011
घोषणा कȧ तारȣख/Date of Pronouncement: 29-12-2011
आदे श/ORDER
ौी महावीर िसंह, Ûयायीक सदःय Shri Mahavir Singh, Judicial Member:
These appeals filed by assessee are arising out of separate orders of CIT(A), Kolkata in Appeal Nos. 47& 54/CIT(A)-XXX/Circle-46/2008-09 & 2009-10 dated 16- 12-2008 and 21-04-2010 for assessment years 2003-04 and 2004-05 respectively. Assessments were framed by the Addl.CIT or JCIT, Range-46, Kolkata for assessment years 2003-04 and 2004-05 u/s.143(3)/147 and 143 of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') vide his orders dated 12-12-2007 and 10-03-2006.
2. The only common issue in these appeals of revenue is against the order of CIT(A) deleting penalties levied by Assessing Officer u/s.271(1)(c ) of the Act by holding that ITA Ns.487/Kol/09 & 1485/Kol/10-B-MVS 1 this is not a fit case for levy of penalty. In both years, assessee raised similar and common grounds. We are reproducing grounds as raised in assessment year 2004-05 in ITA No.1485/Kol/2010, as under:- "1. That on the facts and in the circumstances of the case ld.CIT(A) was not justified in canceling that penalty levied u/s.271(1)( c) of the I.T. Act holding that this is not a fit case for levy of penalty.
2. That on the facts and in the circumstances of the case ld.CIT(A) was not justified in holding that the assessee has not concealed income or furnished in accurate particulars of income.
3. That on the facts and in the circumstances of the case ld.CIT(A) was not justified in holding that the claim made by the assessee is a bonafide mistake based upon wrong advice of the auditor."
3. We have heard rival contentions and gone through facts and circumstances of the case. Brief facts relating to above issue in both assessment years are that assessee filed its return of income for the assessment years 2003-04 and 2004-05 claiming deduction u/s. 80IB of the Act. During scrutiny proceedings for assessment year 2004-05, Assessing Officer noticed that assessee's unit is not located in backward area and even business commenced after the specified date. Further, it failed to prove that there was any manufacturing or production of goods. Accordingly, in assessment year 2004-05, Assessing Officer disallowed the claim of deduction made by assessee u/s. 80IB of the Act. CIT(A) also confirmed the action of Assessing Officer. The assessment was framed u/s.143(3) of the Act on 10-03-2006 for the assessment year 2004-05 and accordingly, notice u/s. 148 of the Act was issued for the assessment year 2003-04 by recording reasons that for claim of deduction made by assessee u/s.80IB is not allowable in view of the fact that assessee's unit is not situated in backward area. In assessment year 2003-04 also claim of deduction u/s.80IB of the Act disallowed during reassessment proceedings. However, in both assessment years CIT(A) also confirmed quantum addition. In the mean time, Assessing Officer started penalty for concealment of income and levied penalty. Relevant paras from penalty order for assessment year 2003-04 reads as under:-
ITA Ns.487/Kol/09 & 1485/Kol/10-B-MVS 2 "From the facts and circumstance of the case it can not be said that the assessee voluntarily disclosed before the A.O. regarding the wrong claim of deduction u./s.80IB made by the assessee in the original return. The fact is that the assessee filed original return of income on 28/11/2003. Which was processed on 20/07/2004. The return was inter alia appended with auditors report in Form No. 3CB and 3CD. In column 8(a) of Form No.3CD auditor has reported that the assessee is manufacturing exporter of ready made garments & Leather hags/items. Certificate in Form No. 1OCB of the auditor was also enclosed with the return certifying that the assessee firm is industrial undertaking and eligible for deduction u/s 80IB. The assessee is regularly filing returns of income for the subsequent years. The return for the A.Y.-2004-05 was scrutinized and found that the assessee is not entitled for deduction u/s.80IB, as the assessee did not run industry in the industrially backward state specified in the 8th schedule and they did not manufacture or produce the article i.e. read)made garments and leather bags exported by it. Therefore, the case was re-opened. The facts have been verified during the course of assessment proceedings and found that deduction u/s. 80IB is not allowable from the income of the assessee, hence made the addition.
From the facts and circumstances of the case I am satisfied that the assessee Firm has concealed their income of Rs. 17,67,1 38/- by furnishing inaccurate particulars namely auditor certificate in Form No. 1OCCB and also nature of business given in the auditor reports in Form No. 3CD.. Furnishing of above details can not be considered as bonafide mistake of the assessee on misconception/wrong interpretation of the provision of section 80IB of the I.T. Act, rather it appears to be will full conduct of the assessee firm to conceal the income and evade liable tax. Therefore, an amount of Rs.. 12,36,998/- (Rupees twelve lakh thirty six thousand nine hundred ninety seven only) is levied as penalty u/s. 271(1)(c) of the l.T. Act,1961, as per calculation given below, which is 200% of the tax sought to have evaded by the assessee by the reason of the concealment of particulars of the income of the assessee firm by furnishing inaccurate particulars of income. Minimum penalty is 100% and Maximum penalty 300% of the tax sought to be evaded."
The AO also levied penalty for assessment year 2003-04 and assessee carried these penalties to CIT(A) in appeals and CIT(A) in assessment year 2003-04 passed a reasoned order deleting penalty ITA Ns.487/Kol/09 & 1485/Kol/10-B-MVS 3
4. We have gone through facts and circumstances of the case and also the orders of lower authorities. We find that for the assessment year 2004-05 the assessee made a claim for deduction u/s. 80IB on the basis of form no.10CCB issued by auditor, which is based on expert advice of a chartered accountant. Similarly, in assessment year 2003-04 after filing of return of income in response to notice u/s.148 of the Act, assessee voluntarily, vide letter dated 30-10-2007 withdrawn the claim of deduction u/s.80IB of the Act and for this assessee was advised to make claim. The ld. Counsel for assessee, Shri Subash Agarwal argued that the claim of deduction u/s.80IB of the Act is based on advice of a chartered accountant and based on bonafide advice. Even otherwise, assessee filed complete particulars of income in the return of income and made a claim, which was a bonafide claim according to assessee. Ld. Counsel stated that a wrong claim based on expert advice is always a bonafide claim and that cannot be treated as concealment of income or furnishing of inaccurate particulars of income. We find merit in the arguments of ld. Counsel that assessee furnished all material facts relevant for assessment and details of income. We are of the view that claim of deduction u/s.80IB of the Act is on account of bonafide belief based upon expert advice of a chartered accountant. In such circumstances, the return filed by assessee cannot be said to be false because there is no element of deliberateness in it. It is possible that even where incorrectness of return is claimed to be due to want of care on the part of the assessee and there is no reasonable explanation forthcoming from the assessee for such want of care, court may, in a given case, can infer deliberateness and return of income is liable to be branded as false. But, where assessee claims a deduction of a particular income from taxable income under a bonafide belief that he is liable for deduction of particular item, it would not right to condemn the return of income as false return inviting penalty u/s. 271(1)( c) of the Act. Hon'ble Apex Court in the case of CIT Vs. Reliance Petroproducts Pvt, Ltd (2010) [322 ITR 158(SC) has considered the meaning of inaccurate as under:-
"We are not concerned in the present case with the mens rea. However, we have to only see as to whether in this case, a matter of fact, the assessee has given inaccurate particulars. In Webster's Dictionary, the word 'inaccurate' has been defined as:
ITA Ns.487/Kol/09 & 1485/Kol/10-B-MVS 4 "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)© 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."
5. The arguments made by ld. SR DR, Shri A.K Pramanick that the claim of assessee for deduction u/s.80IB of the Act is a wrong claim and deliberately made a wrong claim tantamounts to furnishing of inaccurate particulars of income as wrong claim without fulfilling the conditions cannot be accepted as a bonafide mistake. Shri Pramanick relied on the decision of Hon'ble Delhi High Court in the case of CIT Vs. Zoom Communication P. Ltd (2010) 327 ITR 510 (Del) and we find that Hon'ble Delhi High Court has also considered the decision of Hon'ble Apex Court in the case of Reliance Petroproducts Pvt. Ltd (supra). We find that Hon'ble Delhi High Court has considered the facts and issue as under:-
"The assessee before us is a company which declared an income of Rs.1,21,49,861 and accounts of which are mandatorily subjected to audit. It is not the case of the assessee that it was advised that the amount of income-tax paid by it could be claimed as a revenue expenditure. It is also not the case of the assessee that deduction of income-tax paid by it was a debatable issue. In fact, in view of the specific provisions contained in section 40(a)(ii) of the Act, no such advice could be given by an auditor or other tax expert. No such advice has been claimed by the assessee even with respect to the amount claimed as deduction on account of certain equipment having become useless and having been written off. As noticed earlier, the Tribunal was entirely wrong in saying that section 32(1)(iii) of the Act applies to such a deduction. It was not the contention before us that claiming of such a deduction under section 32(1)(iii) was a debatable ITA Ns.487/Kol/09 & 1485/Kol/10-B-MVS 5 issue on which there were two opinions prevailing at the relevant time. In fact, the assessee did not claim, either before the Assessing Officer or before the Commissioner of Income-tax (Appeals) that such a deduction was permissible under section 32(1)(iii) of the Act. No such contention on behalf of the assessee finds noted in the order of the Tribunal. Thus, it was the Tribunal which took the view that section 32(1)(iii) could be attracted to the deduction claimed by the assessee. It is also not the case of the assessee that it was under a bona fide belief that these two amounts could be claimed as revenue expenditure. The assessee, in fact, outrightly conceded before the Assessing Officer that these amounts could not have been claimed as revenue deductions. The only plea taken by the assessee before the income-tax authorities was that it was due to oversight that the amount of income-tax paid by the assessee as well as the amount claimed as deduction on account of certain equipment being written off could not be added back in the computation of income.
As regards deduction on account of income-tax paid by the assessee, the Tribunal felt that since no person would claim the same as deduction, to evade payment of tax, the claim made by the assessee was not mala fide. In the absence of the assessee-company telling the Assessing Officer as to who committed the oversight resulting in failure to add this amount while computing the income of the assessee, under what circumstances the oversight occurred and why it was not detected by those who checked the income-tax return before it was filed and later by the auditors of the assessee-company, we cannot accept the general view taken by the Tribunal. In our view, no such view could have reasonably been taken, on the facts and circumstances prevailing in this case and, therefore, the decision of the Tribunal in this regard suffers from the vice of perversity. We cannot accept the general proposition that no person would ever claim the amount of income-tax as a deduction with a view to avoid payment of tax. No hard and fast rule in this regard can be laid down and every case will have to be decided considering the facts and circumstances in which such a deduction is claimed, coupled with as to whether the explanation offered by the assessee for making the claim, is shown to be bona fide or not".
Further, Hon'ble Delhi High Court in Zoom Communication Pvt. Ltd (supra) has distinguished Reliance Petroproducts P. Ltd (supra) on facts of that case and observed that mere submitting a claim which is incorrect in law would not amount giving inaccurate particulars of income of the assessee, but it cannot be disputed that the claim made by ITA Ns.487/Kol/09 & 1485/Kol/10-B-MVS 6 assessee needs to be bonafide. It was further observed that if the claim besides being incorrect in law is malafide, explanation 1 to section 271(1)( c) of the act would come into play and work to the disadvantage of the assessee.
6. Facts in the present case before us are similar to the judgment of Hon'ble Apex Court in the case of Reliance Petroproducts P. Ltd (supra) that the assessee made a claim of deduction u/s. 80IB of the Act on the advice of expert in view of Form 10CCB i.e. audit report given by a Chartered Accountant. It is not a fact emerging out of the orders of lower authorities whether the assessee was aware about the nature of activity or period for which assessee can claim u/s. 80IB of Act or not. So it cannot be stated that assessee made a wrong claim deliberately or furnished inaccurate particulars of income, rather in our view the assessee's claim is based on tax audit report is a bonafide one. The reliance placed by ld. SR DR on the decision of Hon'ble Calcutta High Court in the case of Shri Pankaj Rathi Vs. CIT in ITA No.24 of 2010 vide judgment dated 2-8-2011 the issue was that the assessee has not disclosed the salary of 8 months and disclosed only salary of 4 months received from new employer. The facts narrated by Hon'ble High Court are as under:-
In the case before us, there is no dispute that during the relevant assessment year, the appellant worked for 8 months before the earlier employer and 4 months before the new employer and totally suppressed the income from salary availed of from the earlier employer but only disclosed the salary of 4 months received from the new employer. The only explanation given is that due to oversight he forget to disclose the salary received the earlier employer including the TDS deducted by the earlier employer.
Finally, Hon'ble High Court in the above facts find no merits in the appeal of assessee and dismissed by observing as under:-
"We, thus, find no merit in the appeal and dismiss the same by holding that the point formulated by the Division Bench was not appropriate within the scope of Section 271(1)(c ) of the Act and hold that on a true and proper interpretation of section 271(1)(c ) of the Income-tax Act, 1961, the learned tribunal was justified in upholding the penalty levied by the Assessing Officer @ 100% as the question of ITA Ns.487/Kol/09 & 1485/Kol/10-B-MVS 7 bonafide intention or inadvertent mistake alleged by the assessee is not a relevant factor and the finding of the tribunal cannot be said to be arbitrary, unreasonable and perverse justifying interference under section 260A of the Act.
We further make it clear we have not considered the question of malafide intention or mens era of the appellant in furnishing the inaccurate income or in concealing the real income as the same is beyond the scope of this proceeding."
7. From the above case laws and the facts of the case, we are of the view that CIT(A) has rightly deleted the penalty in both assessment years and we confirm the same.
8. In the result, appeals of revenue are dismissed.
यह आदे श खुले Ûयायालय मɅ सुनाया गया है तारȣख 29-12-2011
Order pronounced in the open court on 29-12-2011
Sd/- Sd/-
[ सी.डȣ.राव,, लेखा सदःय ] [ महावीर िसंह, Ûयायीक सदःय ]
C.D. Rao, Accountant Member Mahavir Singh, Judicial Member
(तारȣख) Dated 29-12-2011
/Sr.P.S.
*PP वǐरƵ िनǔज सिचव
आदे श कȧ ूितिलǒप अमेǒषतः- Copy of the order forwarded to:
1. अपीलाथȸ /Appellant- ACIT/DCIT,Cir-46, Kol 3 Govt Pl (W), Kol-
700001.
2 ू×यथȸ/ Respondent : M/s. Karry Overseas 152/6 Salkia School Road, Howrah-711106.
3. आयकर किमशनर/The CIT,
4. आयकर किमशनर (अपील)/The CIT(A), Kolkata
5. वभािगय ूितनीधी/DR, Kolkata Benches, Kolkata स×याǒपत ूित/True Copy, आदे शानुसार/ By order, सहायक पंजीकार/Asstt. Registrar ITA Ns.487/Kol/09 & 1485/Kol/10-B-MVS 8