TMI Blog2010 (1) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee for asst. yrs. 2002-03 and 2003-04 passed in ITA Nos. 12 13/Del/2009. He pointed out that the assessee has claimed the deduction under s. 80-IB on export incentive i.e., DEPB and duty drawback. The AO on the strength of Hon ble Punjab Haryana High Court s decision in the case of Liberty India vs. CIT (2007) 207 CTR (P H) 243 excluded the amount of export incentive from the eligible profit for computing deduction under s. 80-IB. He initiated penalty proceedings under s. 271(1)(c) of the Act and ultimately imposed the penalty for furnishing inaccurate particulars. Similar claim was made in asst. yrs. 2002-03 and 2003-04. The penalty was imposed by the AO under s. 271(1)(c) and it was confirmed by the learned CIT(A). The Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., the assessments have been framed under s. 143(3) r/w s. 147 on 18th Nov., 2005 in both the assessment years wherein this deduction was disallowed to the assessee by following the order of Tribunal passed in the case of Asstt. CIT vs. Liberty India in ITA No. 5433/Del/2004. On appeal, learned CIT(A) confirmed the disallowance by following the order of Hon ble jurisdictional High Court in the case of Liberty India vs. CIT (2007) 207 CTR (P H) 243. Similarly, the disallowance has been made in the cases of two other assessees which have been confirmed by the CIT(A) on the strength of Hon ble High Court s decision in the case of Liberty India (supra). The AO was satisfied that the assessees have furnished inaccurate particulars by claiming su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Ltd. (2009) 19 DTR (Chd)(Trib) 1 wherein a claim made under s. 80-IA was disallowed by the AO. The Tribunal deleted the penalty on the ground that merely non-allowance of such claim would not suffer from the vice of non-disclosure of complete facts. 6. In his second fold of submissions, he submitted that the issue of allowability of deduction under s. 80-IB in respect of duty drawback, DEPB has been a controversial one. He pointed out that the Hon ble Delhi High Court in the case of CIT vs. Ritesh Industries Ltd. (2004) 192 CTR (Del) 81 : (2005) 274 ITR 324 (Del) has upheld the allowance of such deduction. Similarly the Tribunal in the case of Anand International decided the issue in favour of the assessee vide order dt. 13th May, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Asstt. CIT vs. Vijay Kiran Hotels (P) Ltd. (2008) 10 DTR (Chd)(Trib) 225. In all these cases, it has been held that where there is diversion of opinion amongst the Hon ble High Courts on a particular issue, the claim of assessee cannot be said to be lacking bona fide for visiting the assessee with penalty. In his next fold of submissions, assessees have contended that they have made the claim on the opinion of experts on this issue. In support of their claim they have attached the requisite audit report with their returns of income. Thus, their claims are fortified by the opinion of chartered accountant. No penalty can be imposed in such circumstances upon the assessees. He relied upon the decision of Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of the assessees were bona fide claim. There were large numbers of orders at the end of the Tribunal in favour of the assessees. The issue whether deduction under s. 80-IB would be admissible on duty drawback and DEPB is still a debatable issue. There are divergent opinions on this issue by the different Hon ble High Courts. The Hon ble Delhi High Court is of the opinion that deduction under s. 80-IB would be admissible on duty drawback and DEPB. In the case of Lakhvinder Singh in ITA No. 5169/Del/2004 decided on 28th Sept., 2005, then in the case of Asstt. CIT vs. Vipin Sardhana in ITA No. 5174/Del/2004 decided on 17th June, 2005 and again in the case of ITO vs. Ess Kay Enterprises, Tribunal Delhi Benches have allowed the deduction to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 271(1)(c). Hon ble Court has held that matter relating to taxability of enhanced compensation receivable by the assessee was still in dispute and two views were clearly possible and, therefore, no penalty can be imposed. In the present appeals also, two views were clearly possible which were supported by orders of the Tribunal as well as decisions of Hon ble High Courts. In such situation, it cannot be said that assessees have concealed income or furnished inaccurate particulars. There is no allegation by the AO that assessees have not disclosed the complete particulars. The only allegation is that assessees have claimed deduction on DEPB and duty drawback under s. 80-IB which is not admissible to them. Taking into consideration all these f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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