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2015 (10) TMI 1081 - AT - Income TaxPenalty u/s.271(1)(c) - non receipt of export proceeds (i.e., in convertible foreign exchange) within six months from the end of the relevant previous year. No instruction from Reserve Bank of India (RBI) had in fact been applied for - Held that:- No ‘post facto approval’ had been allowed to the assessee, which gets established as fact by the tribunal, the final fact finding authority, we are unable to see as to how any such contention could at all be raised in penalty proceedings. This is as the said finding, which is one of fact, and even otherwise not challenged before the hon’ble high court, has attained finality. Repeating the same argument in the penalty proceedings, without brining any further material or fact/s or circumstances on record would therefore be to no effect or purpose. Why, no approval, as afore-noted, stands sought, so that there is no basis or scope for the assessee to even consider itself as being entitled for approval. The assessee, by making a claim of having been allowed extended time, or an approval up to the time the export proceeds have been received, from the competent authority, thus, makes a false claim, i.e., misleads. The assessee’s argument, consequently, fails. As nobody can be presumed to be bestowed with prescience so as to know in advance if the payment, not received by the date of filing the return of income, shall be received in future – and when, or not, the law prescribes a procedure for claiming deduction in its respect in cases of delay in payment. That is, the claim for deduction is made conditional to the allowance of the extended time for receipt. It may be that the assessee delays seeking the extension of time, i.e., by the expiry of the six month period, but surely unless the same has been obtained, there is no basis to make a claim for deduction. In the instant case, the approval having not been sought, there is no basis to even expect an approval – a condition precedent, much less having received it by the date of filing the return, whereby the assessee lodges the claim for deduction. It is the return as furnished, and the facts, as well as law, as obtaining at the relevant time, that is relevant for the purpose of imposition of penalty (See: CIT v. Onkar Saran & Sons [1992 (3) TMI 1 - SUPREME Court ]). We, in view of the foregoing, are in full agreement with the findings of the authorities below that the assessee’s explanation is both false and not bona fide and is guilty of a dishonest conduct, as noted by both the authorities below.The penalty, levied at ₹ 2,50,000/-, i.e., at 120% of tax sought to be evaded, as against a minimum of 100% and a maximum of 300% thereof, is accordingly upheld. We decide accordingly. - Decided against assessee.
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