TMI Blog2011 (3) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... HAKAR REDDY, JJ. K.R. Das for the Appellant. M.P. Lohia for the Respondent. ORDER D.K. Agarwal, Judicial Member. All these appeals pertaining to five assessees, preferred by the revenue are directed against separate orders all dated 9-12-2009 passed by the ld. CIT(A) for the assessment year 2006-07. Since the facts are identical and the issue involved is common, all these appeals were heard together and are disposed of by this common order for the sake of convenience. 2. Briefly stated facts of the case extracted from ITA No. 1126/Mum/2010 for assessment year 2006-07 in the case of M/s. Variable Insurance Products Fund III Balanced Portfolio (VIPBP) are that M/s. Fidelity Management Research Company A/c. Variable Insurance Products Fund III : Balanced (VIPBP) (the assessee) is a fund registered as a Foreign Institutional Investor (FII) with Securities And Exchange Board of India (SEBI). As per the approval granted by the SEBI, the M/s. Fidelity Management Research Company and its sub-accounts (the assessee was one of the sub-accounts) were allowed to invest in the Indian securities subject to the guidelines/directions/instructions issued by SEBI or Rese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idering the assessee's explanation inter alia stating that it had not concealed any particulars of its income or furnished inaccurate particulars of its income held that the assessee has concealed its particulars of income in not including Rs. as "Short Term Capital Gains" in its taxable income and accordingly he imposed penalty of Rs. 2,69,460 vide order dated 30-6-2009 passed under section 271(1)(c) of the Act. 4. On appeal before the ld. CIT(A), it was inter alia, contended that the assessee filed its original return of income on 28-7-2006 offering to tax the income from transactions in Indian securities under the head 'profits and gains of business or profession'. The above stand was taken by the assessee based on the ruling by the Authority for Advance Rulings (AAR) in one of its sister fund's case namely Fidelity Advisor Series VIII, In re [2004] 271 ITR 1/[2005] 142 Taxman 111 (AAR - New Delhi) and in the case of XYZ/ABC Equity Fund v. CIT [2001] 250 ITR 194/116 Taxman 719 (AAR - New Delhi). The assessee subsequently filed a revised return of income on 26-2-2007 prior to the issue of notice under section 143(2) reporting its income from such transactions under the head 'ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny basis for levying the penalty under section 271(1)(c) of the Act for concealment of any income. The Assessing Officer has apparently replicated the order of the sister concern of the appellant for the previous assessment year ignoring the fact of the present case. Further, the appellant had made full disclosure of the facts at all times and therefore the contention of the A.O, that the appellant had concealed income and furnished inaccurate particulars (with a guilty mind) to avoid imposition of tax and appellant had interpreted the law to suit its own free will without complying with the requirements of the law is not acceptable, held that since the primary conditions for levy of penalty under section 271(1)(c) are not satisfied, penalty cannot be levied under the said section and accordingly he deleted the penalty levied by the Assessing Officer. 6. Being aggrieved by the order of the ld. CIT(A), the revenue is in appeal before us taking following grounds of appeal : "1. On the facts and in the circumstances of the case and in law, the ld. CIT (Appeals) erred in deleting the penalty under section 271(1)(c) of the Income-tax Act, 1961. 2. The appellant prays that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 154 Taxman 284 (All.) 40-43 4. Copy of decision in CIT v. Gurbax Lal Co. [2002] 256 ITR 133/123 Taxman 318 (Punj. Har.) 44-45 5. Copy of decision in CIT v. S.S. Karuppasamy Sons [2002] 254 ITR 591 (Mad.) 46 6. Copy of decision in CIT v. J.V. Appadurai Chettiar Co. [1996] 221 ITR 849 (Mad.) 47-54 7. Copy of decision in CIT v. Suresh Chandra Mittal [2001] 251 ITR 9/119 Taxman 433 (SC) 55-56 8. Copy of decision in Dhampur Sugar Mills Ltd. v. CIT [1973] 90 ITR 236 (All.) 57-59 9. Copy of decision in CIT v. Reliance Petroproducts (P.) Ltd. [2010] 322 ITR 158/189 Taxman 322 (SC) 60-69 9. We have carefully considered the submissions of the rival parties and perused the relevant material available on record. We find that there is no dispute that the original return was filed on 28-7-2006 showing business income at 'Nil', relying upon rulings of the AAR in the case of Fidelity Advisor Series VIII (supra) and XYZ/ABC Equity Fund (supra). We further find that it is also not in dispute that the assessee has filed revised retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bona fide belief relying upon Rulings of the AAR in the case of Fidelity Advisor Series VIII (supra) and XYZ/ABC Equity Fund (supra) and the revised return was filed voluntarily without any detection by the revenue showing the income of Rs. 24,01,601 on 26-2-2007 relying upon the latter Rulings of the AAR in the case of Fidelity Northstar Fund (supra) and keeping in view that the assessee has furnished all the details which were not found to be false or inaccurate, we are of the view that merely because in the original return the assessee has made certain claim based upon the ruling of AAR which the assessee has subsequently revised voluntarily as per latter ruling of the AAR does not mean that there is a concealment of income on the part of the assessee. 12. In a recent judgment of the Hon'ble Apex Court in case of Reliance Petroproducts (P.) Ltd. (supra). Their Lordships, after considering various decisions including Dilip N. Shroff v. Jt. CIT [2007] 291 ITR 519/161 Taxman 218 (SC) and Union of India v. Dharamendra Textile Processors [2008] 306 ITR 277/174 Taxman 571 (SC) have observed and held (page 158 head notes) as under : "A glance at the provisions of section 271(1)(c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f inaccurate particulars of such income which may attract levy of penalty under section 271(1)(c) of the Act. Accordingly, we are inclined to uphold the findings of the ld. CIT(A) in deleting the penalty imposed by the Assessing Officer. The grounds taken by the revenue are, therefore, rejected. ITA No. 1127/Mum/2010 for assessment year 2006-07 ITA No. 1128/Mum/2010 for assessment year 2006-07 ITA No. 1129/Mum/2010 for assessment year 2006-07 ITA No. 1130/Mum/2010 for assessment year 2006-07 14. The common grounds taken by the revenue in the above appeals read under : "1. On the facts and in the circumstances of the case and in law, the ld. CIT (Appeals) erred in deleting the penalty under section 271(1)(c) of the Income-tax Act, 1961. 2. The appellant prays that the order of the ld. CIT(A) on the above ground be set aside and that of the Assessing Officer be restored." 15. At the time of hearing, both the parties have agreed that the facts of the above cases are similar to the facts of the case of M/s. Variable Insurance Products Fund III Balanced Portfolio (VIPAG), therefore, the same plea may be considered while deciding the above appeals. The ld. Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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