TMI Blog2018 (10) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... d herein were made by the Assessee, they were governed by judicial decisions of the Tribunal, we do not think that this judgment would apply in the factual matrix before us. From the facts of the present case, it is clear that they were debatable and arguable questions which certainly did not warrant the levy of penalty on the Assessee. - decided against revenue - INCOME TAX APPEAL NO. 1133 OF 2016, 1136 OF 2016, 1129 OF 2016, - - - Dated:- 4-9-2018 - S. C. DHARMADHIKARI B.P.COLABAWALLA, JJ. Mr. Tejveer Singh for the appellant in all appeals. Mr. Nitesh Joshi a/w Mr. Atul K. Jasani for the Respondent in all appeals. JUDGMENT [ PER B. P. COLABAWALLA J.]: 1. By these three appeals filed by the Revenue, under the provisions of Section 260A of the Income Tax Act, 1961, the Revenue assails the Judgment and Order of the Income Tax Appellate Tribunal ( ITAT ) Pune Bench 'B', Pune dated 12th June, 2015. By the impugned order, the three appeals filed by the Revenue before the ITAT for the Assessment Years ( A.Y. ) 2003-04, 2004-05 and 2005- 06 were dismissed and the appeal filed by the assessee before the ITAT for the A.Y. 2003-04 was partly allowed. Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in point Nos. 1 and 2 (reproduced above). In addition thereto, the ITAT, relying upon the decision of this Court in the case of CIT Vs M/s Nayan Builders and Developers in Income Tax Appeal No. 415 of 2012 decided on 8th July, 2014 as well as the decision of ITAT, Pune in the assessee's own case for the A.Y. 1999-2000 and 2000-01 deleted the penalty imposed with respect to the addition in relation to point No.3 (reproduced above). It is aggrieved by this order of the ITAT that all the present appeals have been filed. We must mention here that as far as A.Y. 2003-04 is concerned, though six questions of law have been raised in the memo of appeal, only one question was re-casted and placed before us by the Revenue and which reads thus: Whether on the facts and circumstances of the case and in law, the Honourable ITAT was correct in holding that since for the earlier year for similar dis-allowance no penalty was levied, hence no penalty can be levied for this year? 5. As far as, Income Tax Appeal Nos. 1136 of 2016 (for the A.Y. 2004-05) and Income Tax Appeal No. 1129 of 2016 (for the A.Y. 2005-06) are concerned, only one question of law was re-casted and placed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Point No.1 as reproduced above (under section 80IA) was on the basis of judicial decisions prevailing at the time of making such a claim and all particulars relating thereto were disclosed in the return of income. Taking all this into account, it can hardly be said that the Assessee has furnished inadequate particulars or had concealed his income within the meaning of section 271(1)(c) of the Income Tax Act, 1961. 8. Similar is the case with reference to Point No.2 reproduced above which relates to the rejection of the Assessee's claim that sales tax incentive is in the nature of a capital receipt and therefore not taxable. This claim was made by the Assessee on the basis of a decision of a Special Bench of ITAT, Mumbai in the case of DCIT v/s Reliance Industries Ltd., reported in 88 ITD 273. Further, in the facts of the present case, in the revised return filed by the Respondent herein for Assessment Year 2003-2004, the facts relating to the receipt of subsidy by way of sales tax exemption / differal scheme and its treatment by the Respondent, have been clearly mentioned in the computation of income accompanying such return. Taking all these facts into considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggested that Section 14-A of the Act specifically excluded the deductions in respect of the expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act. It was further pointed out that the dividends from the shares did not form part of the total income. It was, therefore, reiterated before us that the assessing officer had correctly reached the conclusion that since the assessee had claimed excessive deductions knowing that they are incorrect; it amounted to concealment of income. It was tried to be argued that the falsehood in accounts can take either of the two forms; (i) an item of receipt may be suppressed fraudulently; (ii) an item of expenditure may be falsely (or in an exaggerated amount) claimed, and both types attempt to reduce the taxable income and, therefore, both types amount to concealment of particulars of one's income as well as furnishing of inaccurate particulars of income. 20. We do not agree, as the assessee had furnished all the details of its expenditure as well as income in its return, which details, in themselves, were not found to be inaccurate nor could be viewed as the conceal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(1)(c) of the Income Tax Act, 1961. 11. As far as Point No.3 is concerned, the same is with reference to A.Y. 2003 -04. Though the CIT(A) by his order dated 20th February 2009 upheld the levy of penalty on Point No.3, the Tribunal set aside the order of the CIT(A). This was done on the basis that in the preceding Assessment Year, on a similar dis-allowance, no penalty was levied by the Assessing Officer. This being the case and in identical facts, the penalty could not be levied in the succeeding Assessment Year for the very same dis-allowance. To further fortify these findings, the Tribunal relied upon a decision of its Coordinate Bench in the case of C .P. Mohan v/s DCIT decided on 29th May 2015 in ITA No.957/PM/2011. Apart from this, the Tribunal also held that as far as the rate of depreciation is concerned, the Assessee has admitted that a genuine mistake was made in adopting 100% depreciation and which mistake was a bonafide one. This explanation was accepted by the Tribunal. In fact, the Tribunal recorded that it was in the impugned Assessment Year that the rate of depreciation was reduced from 100% to 80%. Considering that it was a bonafide mistake, the Tribunal held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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