Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2013 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (8) TMI 328 - ITAT DELHIPenalty u/s 271(1)(c) - Assessee claimed deduction u/s 80IC - CIT deleted penalty u/s 271(1)(c) but disloowed deduction u/s 80IC - Held that:- deduction u/s 80IC of the Act was disallowed by the CIT (A), not on the ground of old machinery having been used in the business, but on the ground of the assessee having failed to comply with the requirement of substantial expansion. This ground, it is pertinent to note, had never been invoked by the Assessing Officer for making the disallowance for the year. This disallowance was not challenged by the assessee before the Tribunal. However, this fact of the addition not having been challenged before the Tribunal, by itself does not lead to any inevitable conclusion of leviability of concealment penalty. Penalty proceedings and assessment proceedings are separate. Though the findings in assessment proceedings may be relevant for the purposes of levy of concealment penalty, they are not material for such levy, on a stand alone basis. The requirement u/s 271 (1)(c) of the Act is either concealment of particulars of income or furnishing of inaccurate particulars thereof, neither of which is the case herein. Even under Explanation-1 to Section 271 (1)(c), a presumption is raised, which is a rebuttable presumption. In the present case, even this presumption is not, at the outset, even available against the assessee, inasmuch as the explanation offered by the assessee has neither been found to be false, nor has the assessee not been able to substantiate the same, nor has such explanation been shown to be not bona fide - all facts relating to the explanation and material to the computation of the assessee's total income stood duly disclosed by the assessee. where in the return of income filed, the assessee had duly disclosed all the details regarding the claim of deduction u/s 80IC of the Act, which claim was supported by the Tax Audit Report and the Tax Audit Report contained all the facts relating to the substantial expansion as required by Section 80IC, the Assessing Officer nowhere alleged the assessee to have withheld any information or to have furnished any false information, the disallowance had been made merely on account of a bona fide difference of opinion between the assessee and the department regarding the manner of determining substantial expansion for the purpose of the allowability of deduction u/s 80IC of the Act, which determination, undoubtedly, is a highly debatable/vexed legal issue, beside the fact that the disallowance had been made by the Assessing Officer on one issue, whereas that made by the CIT (A) was entirely on a different issue, no penalty u/s 271(1)(c) of the Act is leviable - Following decisions of 'CIT vs. Nalwa Sons Investment Ltd. [2010 (8) TMI 40 - DELHI HIGH COURT], CIT vs. Dharam Pal Prem Chand Ltd. [2010 (9) TMI 155 - DELHI HIGH COURT] and CIT vs. Harshwardhan Chemicals and Minerals Ltd. [2002 (5) TMI 15 - RAJASTHAN High Court] - Decided against Revenue.
|