TMI Blog2013 (7) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... ELHI HIGH COURT] and Union of India Vs. Rajasthan Spg. & Wvg. Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA]. - Tax Case (Appeal) Nos.26 and 27 of 2010 - - - Dated:- 5-6-2013 - Chitra Venkataraman And K. B. K. Vasuki,JJ. For the Appellant : Mr. R. Sivaraman For the Respondent : Mr. N. V. Balaji Standing Counsel for Income Tax Dept. JUDGMENT (Judgment of the Court was delivered by Chitra Venkataraman, J.) The assessee is on appeal as against the common order of the Income Tax Appellate Tribunal, Madras 'D' Bench dated 25.05.2009 in ITA.Nos.802 and 803/Mds/2008 relating to the assessment years 2002-03 and 2003-04 raising the following questions of law:- T.C.(A).No.26 of 2010:- "1. Whether on the facts and in the circumstances of the case, the Appellate Tribunal is right in law in confirming the levy of penalty of Rs.4,99,800/- under Section 271(1)(c) of the Act for the assessment year 2002-03 ? 2. Whether on the facts and circumstances of the case, the Appellate Tribunal is right in law in imposing the penalty under Section 271(1)(c) even though there is no finding in the penalty order that there exists concealment of income ? 3. Whether on the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in not initiating penalty proceedings did not need any interference, in the circumstances, the assessment was set aside for the limited purpose of fresh consideration for further examination and decision as per the provisions of the Act. 5. Consequent on the revisional order, the Assessing Officer passed fresh assessment order for the year 2002-03. During the course of assessment proceedings, the Assessing Officer viewed that the assessee had concealed income within the meaning of Section 271(1)(c) of the Act, hence, proposed penalty for both the years. 6. As far as the assessment year 2003-04 is concerned, it is an assessment passed under Section 143(3) of the Act. It is seen from the order of the assessment for the year 2003-2004 that the addition in this year arose on account of disallowance of the assessee's claim on depreciation and the claim of deduction on question of payment of penalty and fine under the Customs Act apart from additions on disallowing the claim towards LC discounting charges rejected. 7. It is seen from the order of assessment that as regards the claim on depreciation, in the course of Survey under Section 133A of the Act, a sworn statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty under Section 271(1)(c). In the circumstances, keeping in view the entire facts and circumstances of the case, penalty levied by the Assessing Officer was confirmed and the order of Commissioner of Income Tax (Appeals) was set aside. Aggrieved by this, the present Tax Case Appeals by the assessee. 13. Learned counsel for the assessee submitted that when in the Section 263 proceedings, particularly for the year 2002-03, the Commissioner of Income Tax had specifically pointed out that there was no case for levy of penalty and the Assessing Officer was directed only to assess the additional estimated income offered, the Department could not initiate again, penal proceedings under Section 271(1)(c) of the Act. He further pointed out that the additions were offered only to purchase peace with the Department, consequently, there is no case of concealment in this case. 14. As far as assessment year 2003-04 is concerned, learned counsel submitted that disallowance, per se, would not lead to an inference of concealment, consequently, on the facts of the case, the Income Tax Appellate Tribunal committed serious error in holding that circumstances warrant levy of penalty in this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as there were no physical movement of goods and the bogus bills claimed as in the earlier year were for giving financial accommodation to its group companies. In the circumstances, no interference is called for in the order of the Income Tax Appellate Tribunal. 18. Heard the learned counsel on either side and perused the documents available on record. 19. We agree with the contentions of the learned Standing counsel appearing for the Revenue. It is no doubt true that in the order passed under Section 263 of the Act dated 08.12.2004, the Commissioner of Income Tax pointed out to the offer made by the assessee for addition and ultimately held that in view of the submissions of the assessee and the facts of the case, the decision of the Assessing Officer in not initiating penalty proceedings did not need interference. Having said so, while remanding the matter for fresh consideration for Assessing Officer for further examination and decision, the Assessing Officer was directed to consider the claim of the assessee as per the provisions of the Act. Thus, contrary to the assertion of the assessee, all that the Commissioner of Income Tax did in the revisional Order was that while a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , T.Nagar, Chennai-17 ) and other decisions of this Court as well as Apex Court. The issue in the said unreported decision of this Court in T.C.(A).No.341 of 2010 related to cash deposit. On the allegation that cash deposit of Rs.47,36,000/- was made out of sales and also recovery from the sundry debtors, penalty was imposed by the Assessing Officer. On appeal by the assessee, the Appellate Authority pointed out that the reasons for increase in the profit percentage from 5% to 8% was not clear. Taking into consideration the merits of the case on a factual finding given by the Income Tax Appellate Tribunal, this Court found that it was not a fit case for levy of penalty. Further, on these facts, this Court applied the decision of the Apex Court in the case of Commissioner of Income Tax Vs. Reliance Petroproducts (P) Ltd., reported in (2010) 322 ITR 158 as well as the decision of this Court in Tax Case (Appeal) No.273 of 2012 dated 12.09.2012 (Commissioner of Income Tax, Chennai Vs. M/s.Shriram Properties Constructions (Chennai) Ltd., T.Nagar, Chennai-17) to delete the levy of penalty, thereby, confirming the order of Income Tax Appellate Tribunal. 24. As far as the other two unr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
