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TMI Blog2012 (4) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... back for treating them as profits derived from industrial undertaking. The Assessing Officer completed the assessment order vide his order dated 26.8.2008 and did not allow the deduction under section 80 IB of the Act. A penalty order was issued on 2.12.2010 under section 271(1)(c). The judgment of the Apex Court in Liberty India versus Commissioner of Income Tax 225 CTR 233(2009) has been relied and referred to while passing the penalty order where the Apex Court has laid down that duty draw back/DEPB are incentives which flow from the schemes framed by the Central Government, hence the incentives/profits are not profits derived from the eligible business and therefore duty draw back received/DEPB benefits do not form part of net profit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80 IB of the Act on the amounts of incentives by way of duty draw back for treating them as profits derived from the industrial undertaking. The Apex Court, subsequent to the date of filing the return of income by the assessee in the case of Liberty India versus CIT (2009) 28 DTR (SC) 173; 317 ITR 218 (SC) 173:317 ITR 218 (SC) clarified the law that receipts from DEPB/DDB are not profits derived from industrial undertaking but are independent source of income. Such a claim of deduction made on the amount of these incentives was not sustainable in law at the time when the return was filed by the assessee. The Apex in the case of CIT vs.Reliance Petroleum Products (P) Ltd. (2010) 322 ITR 158 (SC) has laid down that a mere making of a claim w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal that there was a difference of opinion at the time when return was filed by the assessee. The mere fact that claim of deduction under section 80 IB of the Act could not have been made a basis for imposing penalty, is not correct. It is not denied that the Apex Court clarified the law in Liberty India versus Commissioner of Income Tax (Supra) subsequent to filing of the return. The Apex Court in Commissioner of Income Tax versus Reliance Petro Products Pvt. Ltd. (Supra) has laid down that 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. The presen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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