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TMI Blog2018 (10) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Act, 1961(here-in-after referred to as "the Act") dated 27.03.2014 relevant to Assessment Year (AY) 2005-06. 2. The grounds of appeal raised by the revenue are as under:- 1. "The Ld.CIT(A) has erred in law and facts in deleting the penalty levied by the AO on the disallowance of deduction u/s.10B which had been upheld by the CIT(A) amounting to Rs. 30,84,740/- 2. On the facts and in the circumstances of the case, the Ld CIT(A) ought to have upheld the order of the Assessing Officer. 3. It is, therefore, prayed that the order of the 'Ld.CIT(A) may be set aside and that of the Assessing Officer may be restored to the above extent. 4. The appellant craves leave to amend or alter any ground or add a new ground, which may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceedings. Therefore, it cannot be held that the assessee has either concealed any income or furnished any inaccurate particulars of income. 4.3 However, the AO disregarded the contention of the assessee by observing that the assessee has furnished inaccurate particulars of the income by claiming the excess deduction u/s 10B of the Act for Rs. 84,29,981/- only. Accordingly, the penalty of Rs. 30,84,740/- was levied u/s 271(1)(c) of the Act being 100% of the amount of the tax sought to be evaded vide order dated 27-03-2014. 5. Aggrieved, assessee preferred an appeal to Ld CIT(A). The assessee before the Ld CIT(A) submitted that it had committed a bona fide mistake in taking the total turnover after including the interdivision sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er income protection of claim as per audit report was clearly stated by the appellant and no information was withheld or concealed. It has also placed reliance on the judgment of honourable Gujarat High Court in the case of BTX Chemicals 288 ITR 196, in which it has been held by the honourable court that a bona fide claim based on the chartered accountant's advice is made, the penalty cannot be levied, because the claim was rejected. On a careful consideration of entire facts of the case, it is noted that the information on the basis of which the assessment was reopened and the claim under section 10B was reduced was already there and submitted by the appellant during the course of assessment proceedings and it was also a part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of Ld CIT(A) Revenue is in second appeal before us. 6. The Ld DR before us vehemently supported the order of AO whereas, the Ld Counsel for the assessee filed a paper book which is running from pages 1 to 41 and submitted that the deduction u/s 10B was claimed on the basis of auditor certificate, which is placed on page 4 to 7 of the paper book. Therefore, the assessee should not be penalized for the mistake committed by the auditor. 6.1 The assessee during the assessment proceedings has furnished all the details with regard to the deduction claimed u/s 10B of the Act. Thus, there was neither any concealment of income nor furnished inaccurate particulars of income in the income tax return. Thus, there is no question of levying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in favour of the assessee by the judgment of the Supreme Court in CIT v. Reliance Petroproducts (P.) Ltd. [2010] 322 ITR 158/189 Taxman 322 and a judgment of this Court, to which one of us (S.J. Vazifdar, J.) was a party dated 14th August, 2012 in CIT v. Aditya Birla Nova Ltd. [IT Appeal No.3899 of 2010]. 7. In the circumstances, the question of law is answered in the negative, in favour of the assessee." 7.2 We also place our reliance on the judgment Hon'ble Allahabad High Court in the case of CIT Vs. Sanjiv Misra reported in 45 taxmann.com 476 wherein it was held as under: "9. After hearing both the parties at length and on perusal of the record, it appears that the accounts were duly audited and the exemption under Section 10B was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence of any adverse material, we find no reason to interefere. 13. In the instant case, the facts were fully furnished. So, no penalty is leviable as as per the ratio laid down in the following cases :- (i) CIT v. Nath Bros. Exam. International Ltd. [2007] 288 ITR 670 (Delhi); and (ii) CIT v. International Audio Visual Co. [2007] 288 ITR 570 (Delhi). 14. In view of above discussion and by considering the totality of the facts and circumstances of the case, we do not find any reason to interfere with the impugned order passed by the Tribunal. Hence, the order passed by the appellate authority is hereby sustained. 15. The answer to the substantial question of law is in favour of the assessee and against the department." 7.3 In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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