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1 - 10 of 12 (0.23 seconds)Union Of India & Ors vs M/S. Dharamendra Textile Processors ... on 29 September, 2008
6. We have carefully considered the submissions of the rival parties
and perused the material available on record. Penalty under section
271(1)(c) is a civil liability and the revenue is not required to prove
willful concealment as held by the Hon'ble Supreme Court in case the
of Union of India vs. Dharmendra Textiles and Processors (2008) 306
ITR 277(SC). However, each and every addition made in the
9 ITA No.1372/M/09
A.Y: 03-04
assessment cannot automatically lead to levy of penalty for
concealment of income. A case for imposition of penalty has to be
examined in terms of the provisions of Explanation 1 to section
271(1)(c). Secondly, it is a settled legal position that penalty
proceedings are different from assessment proceedings.
Dy. Cit vs Haryana Warehousing Corpn. on 15 September, 2004
In CIT vs. Haryana Warehousing Corporation (2009) 25 DTR
194 (P&H), relied on by the ld. Counsel for the assessee, it has been
held that revenue having all along accepted assessee's claim of
exemption under section 10(29) in respect of its entire income, similar
claim for exemption made by the assessee was legitimate and bona
fide and, therefore, penalty under section 271(1)(c) cannot be levied
simply because the claim for exemption under section 10(29) has been
disallowed in the relevant year on the income earned by the assessee
14 ITA No.1372/M/09
A.Y: 03-04
from other sources except income derived by letting out of godowns
and warehouses, more so when legal position at that time was still in
flux and clear finding has been recorded by the Tribunal that the
assessee has disclosed the entire facts and has not concealed any
income.
Section 10 in The Coinage Act, 2011 [Entire Act]
Calcutta Discount Company Limited vs Income-Tax Officer, Companies ... on 1 November, 1960
13. In Twin Star Jupiter Co-operative Hsg. Soc. Ltd. Vs. ITO (2009)
31 SOT 474 (Mum.), relied on by the ld. Counsel for the assessee, the
facts are that the assessee company was a co-operative housing
society. The Assessing Officer made certain additions to the total
income of the assessee in respect of 3 items. On appeal, the
Commissioner(Appeals) dismissed the assessee's appeal. Thereafter,
the Assessing Officer levied penalty upon the assessee under section
271(1)(c). On appeal against penalty order, the
Commissioner(Appeals) cancelled the penalty in respect of only one
item and confirmed the penalty in respect of remaining two items. It
has been held that when the assessee had filed all the particulars of
income, the correct assessment and calculation of total income had to
be done by the Assessing Officer. If in such process the Assessing
Officer found different total income to be assessed, than the income
offered by the assessee, in such case it was not automatically a case
where penalty under section 271(1)(c) was leviable.
Commissioner Of Income-Tax vs India Sea Foods on 9 April, 1976
In CIT vs. India Sea Foods (supra), the facts of the case are that
the assessee declared a net loss of Rs.3,29,304/- in the return filed by
it. After discussion with the Department and under the settlement the
partners of the firm agreed that a sum of Rs.7.00 lacs may be added
as income derived from them from undisclosed sources subject to
spread over between the Assessment Years 1964-65 to 1968-69 in
proportionate to the turnover. The assessee also agreed under that
settlement that minimum penalty prescribed under the Act may be
levied against it for all those years. Pursuant to the said settlement
11 ITA No.1372/M/09
A.Y: 03-04
the Assessing Officer finalised the assessment after adding a
proportionate amount of Rs.2,84,727/- and disallowance of certain
expenses. The net result of these additions was that in the place of
loss of Rs.3,29,304/- shown in the return the assessee was found to
have made a profit of Rs.18,460/-. On penalty proceeding, Inspecting
Astt. Commissioner (the IAC) after over-ruling the objections of the
assessee held that the minimum penalty leviable was Rs.2,84,727/-
which amount in his view, represented the concealed income and
accordingly imposed the said penalty. On appeal, the Tribunal set
aside the order of the IAC imposing penalty. On reference following
questions were referred to the Hon'ble High Court:
Shiv Narain Agarwal vs Commissioner Of Income-Tax on 7 July, 1980
In Nagin Chand Shiv Sahai vs. CIT (1938) 6 ITR 534(Lah.)
( wrongly cited by the Revenue as 61 ITR 534) the question that fell to
be considered by the Hon'ble Lahore High Court in that case was
whether u/s.28 of the Indian Income tax Act,1922, a penalty could be
imposed against an assessee who had deliberately put forward certain
false claims for deductions.
Commissioner Of Income-Tax vs Gates Foam And Rubber Company on 17 August, 1972
In CIT vs. Gates Foam And Rubber Company (supra), it has been
held (page 468 headnote) that the placing of the bogus debit as
genuine constituted furnishing of inaccurate particulars of income. It
had been proved that the agent-firm was a bogus concern set up for
the purpose of diverting a large portion of the income of the assessee.
The presumption provided for in section 271(1)(c) applied to the facts
of the case and penalty had to be imposed.
Commissioner Of Income-Tax vs Soorajmall Nagarmull on 28 January, 1997
29. The learned counsel for the assessee submitted
that the assessee in order to hedge against any losses
entered into these transactions and therefore, it cannot
be treated as speculation transaction. Referring to the
decision of the Tribunal in the case of ACIT Vs. Mahendra
Brothers in ITA Nos.1880/Mum/05 & 948/Mum/06 vide
order dated 29.4.2009 for the assessment years 2001-02
& 2003-04 respectively, she submitted that the Tribunal
in the said decision, following the decision of the Hon'ble
High Court of Kolkata in the case of CIT Vs. Soorajmull
Nagarmull reported in 129 ITR 169(Bom) and the decision
of Hon'ble Bombay High Court in the case of CIT Vs.
Badridas Gauridu (I) Ltd., 261 ITR 256 (Bom) had
dismissed the appeals filed by the Revenue, where it was
held by the CIT(A) that exchange loss on account of
cancellation of forward contract amounts to business
loss. She accordingly submitted that the issue stands
covered in favour of the assessee by the decision of the
co-ordinate Bench of the Tribunal.
Anantharam Veerasingaiah & Co vs Commissioner Of Income Tax, A.P on 15 April, 1980
The finding
given in the assessment though is a good evidence but the same is not
conclusive in penalty proceedings as held by the Hon'ble Supreme
court in the case of Anantharam Veerasinghaiah & Co. vs. CIT ((1980)
123 ITR 457 (SC). In the instant case we find that there is no dispute
that the assessee has filed all the details including the detail of claim
of deduction u/s.10A of the Act. The penalty u/s.271(1)(c) was
imposed by the Assessing Officer and confirmed by the ld. CIT(A) on
the amount of Rs.11,99,324/- being the difference between the claim
of deduction u/s.10A claimed by the assessee and allowed by the
revenue .