TMI Blog2021 (8) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in the revenue land records maintained either as lessee of the land or the cultivator. Since the Tribunal in preceding Assessment Years have already given a finding that the assessee made claim of agricultural income in mala fide manner in gross abuse of the provisions of the Income Tax Act and since the facts of the impugned year are identical, therefore, respectfully following the order of the Tribunal in assessee s own case in preceding year,[ 2017 (12) TMI 1058 - ITAT DELHI] we uphold the penalty imposed by the AO. Thus, the order of the CIT(A) is reversed and we uphold the findings of the Assessing Officer. - Decided in favour of revenue. - I.T.A. No. 3083/DEL/2017, I.T.A. No. 3084/DEL/2017 - - - Dated:- 23-8-2021 - Shri R. K. Panda Accountant Member And Ms Suchitra Kamble, Judicial Member For the Appellant : Smt. Sushma Singh, CIT DR For the Respondent : Sh. Sandeep Bansal, CA ORDER PER SUCHITRA KAMBLE, JM These two appeals are filed by the Revenue against order dated 23/02/2017 27/02/2017 passed by CIT(A)-7, New Delhi for assessment year 2008-09 2009-10. 2. The grounds of appeal are as under:- I.T.A. No. 3083/DEL/2017 (A.Y 2008- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6/Del/2015 were decided against the assessee by the Tribunal vide order dated 29.06.2018. 6. The Ld. AR filed written submissions as under: I. Quantum Appeals Admitted in High Court 1. Quantum Appeals for the said years - admitted by Delhi High Court vide order dated 25 Sep 2018 and 17th July 2018. (Refer Page 1 to 4 of PB 2). 2. Settled position that once the Question of Law is admitted by High Court, it shows matter is debatable and where the issue is debatable, penalty can t be levied. 3. Judgements : Delhi High Court Judgement - Mehta Charitable Prajanalaya Trust (Page 71 of PB 3 -Refer para 8); Liquid Investment Trading Co. (Pg 9 of PB 2); and Bombay HC Judgment in the case of Navyug Builders Developers (Pg 10 of PB 2). The aforesaid principle was duly followed by Delhi ITAT in a. Johnson Mathey India (Pg 51 of PB 5 Para 11 of the Order) b. Standard Chartered Grindlays (Pg 14 of PB 2 - Para 7 11 of the Order) c. Perot Systems TSI India P Ltd. (Pg 19 20 of PB 2- Para 10 of the Order) d. Jindal Steel Power Ltd. ( Pg 35 of PB 2 Para 6.14 of the Order) Also refer Pune ITAT judgement in the case of GKN Sinter Metals (Pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty can t be levied. SC dismissed the appeal filed against the said proposition.(Pg 60 66 of PB 1) IV. Even if Claim not sustainable in law doesn t mean Penalty 10. Specific Finding by Ld Commissioner of Appeals that company has been able to give bonafide explanation and no inaccurate particulars of Income were furnished. (Pg 67-68 / Pg 83-84 of PB 2). 11. It is undisputed that Penalty in the case of the company has been levied on account of furnishing of Inaccurate Particulars. It has been held by SC in the case of Reliance Petroproducts that particulars as per Section 271 means particulars in Return of Income (PB 1 pg 55). Further it has been held by SC that just because claim made by the assesse is not acceptable to AO doesn t mean, penalty can be levied. There is no allegation in the Penalty Order that particulars of Income were not disclosed in Return. Infact that the company is claiming Agricultural Income has been disclosed in abundance in Return of Income as well as Tax Audit Report (Refer Pg 12 to 25 and Pg 37 to 50 of PB 1). The same is also evident from Financial Statement (Pg. 23 to 47 of PB 4). Also refer Delhi HC Order Mehta Charitable Pg. 74 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uantum appeal in the present assessment year for which penalty has been imposed for the issue of exemption under Section 10 (1) has been decided by the Tribunal against the assessee. The penalty orders for A.Ys. 2004-05, 2006-07 and 2007-08 which was relied upon by the CIT(A) has been decided by this Tribunal vide order dated 29.06.2018 as under: 12. On perusal of the above observation of the Assessing Officer, other paragraphs of the assessment order and arguments of the Ld. DR, we are of the opinion that the assessee company has actually purchased seeds from the farmers and claimed the said activity as agriculture income by way of creating a chain of documents or papers of lease agreements etc and thus the explanations furnished by the assessee are not found to be bonafide. The assessee has claimed its activity of purchase of the seeds from the farmers as agriculture income in a fraudulent manner to evade the taxes, which it was liable for carrying its business activity. It is not the simple case of disallowance of expenditure as in the case of reliance Petro products Private Limited(supra). In the instant case the real activity of purchase of the seeds has been planned and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the simple case of disallowance of expenditure as in the case of Reliance Petro Products Private Limited(supra). The facts remains unchanged that the real activity of purchase of the seeds has been planned and arranged in such a way as it look like the agricultural activity but the assessee has not succeeded in camouflaging its real activity. One of the strange features in the kind of arrangement or documentation of the assessee is that in case of no yield or damage of crop, the expenses on labour or service or fertilizer etc. has to be borne by the farmer because in absence of no crop, there would be no procurement price to the farmer and the farmer will get nothing. In such circumstances, how the assessee could explain that the cultivation has been done by the company. Another strange feature is that how the assessee can claim as cultivator as its name is not appearing in the revenue land records maintained either as lessee of the land or the cultivator. Since the Tribunal in preceding Assessment Years have already given a finding that the assessee made claim of agricultural income in mala fide manner in gross abuse of the provisions of the Income Tax Act and since the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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