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2009 (8) TMI 46

..... r claiming the expenditure and disallowance is no ground for levying penalty. Mere erroneous claim in absence of any concealment or giving of inaccurate particulars is no ground for levying penalty - Assuming the assessee was not justified in delaying the deposit and was liable to pay tax on the said amount, this could not be conclusive to infer deliberateness of default on the part of the assessee. Issue of levy of penalty has to be decided on facts of each case. - 450 of 2009 (O&M) - 20-8-2009 - ADARSH KUMAR GOEL and DAYA CHAUDHARY JJ. Mr. Rajesh Katoch, Advocate for the appellant. JUDGMENT ADARSH KUMAR GOEL, J. (Oral) - The revenue has preferred this appeal under Section 260A of the Income Tax Act, 1961 (for short, the Act ) against the .....

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..... on or not. 4. Without prejudice to the above, whether, on the facts and in the circumstances of the case, the Ld. ITAT was right in law in confirming the order of the Ld. CIT (A) in deleting the portion of penalty levied by the Assessing Officer u/s 271(1)(c) of the Income Tax Act, 1961 on the addition of Rs.17,94,761/- while observing in para 4 of its order that the expenditure on the PF and ESI is allowable, in contravention of the judgment of Hon ble Bombay High in the case of CIT Vs. Pamwi Tissues Ltd. (215 CTR 150), wherein the case of CIT Vs. Vinay Cement Ltd. was distinguished and it was held that the payment of PF and ESI should be made by the due date and there could be no legal dispute on this issue? 2. During the assessment, the .....

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..... rred to upon by the Ld. AR in the case of PM Electronics Ltd. (supra) would be squarely applicable and the payment is allowance expenditure though the same has not been allowed in the quantum appeal. In view of the decision of the Hon ble jurisdictional High Court, one it is found that the expenditure on the PF & ESI is allowable, just because the disallowance has been confirmed on a mistaken interpretation, it would not lead to the reason for the confirmation of levy of penalty. In the circumstances, on this ground also, no penalty is leviable in the hands of the assessee. This being so, we are of the view that the finding of the CIT(A) in cancelling the penalty on the two count is on a fight footing and does not call for any interfere .....

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