TMI Blog2017 (11) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... l No. 4 / 2017 - - - Dated:- 6-11-2017 - K. S. Jhaveri And Vijay Kumar Vyas, JJ. For the Appellant : Mr.Siddharth Ranka For the Respondent : Mr.Anuroop Singhi ORDER 1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal preferred by the assessee and confirm the order of CIT(A) and AO. 2. This Court while admitting the appeal on 24.1.2017, framed the following substantial questions of law: Whether on the facts and material available on record and in law the ld. ITAT was justified in confirming penalty u/s. 271(1)(c) of the Act? 3. Counsel for the appellant contended that in view of guidelines issued on the Revised Schedule VI to the company under the Companies Act, 1956 by the Institute of Chartered Accountants of India, New Delhi where in Paragraph 9.8.1.3, reads as under: 9.8.1.3 Any interest on shortfall in payment of advance income-tax is in the nature of finance cost and hence should not be clubbed with the Current tax. The same should be classified as Interest expense under finance costs. However, such amount should be separately disclosed. 4. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approximately under Section 37 of the Act. The Tribunal had remitted the matter to the lower authorities to the extent of ₹ 2.75 crores for re-examination. Similarly in CIT vs. Citi Financial Consumer Finance (2011) 335 ITR 29 (Del.), a Division Bench of this Court dismissed the appeal of the Revenue and treated expenditure of ₹ 1.52 crores on leasehold improvements as revenue in nature and did not accept the plea of the Revenue that the expenditure should be capitalized. The expenditure was incurred on civil work, laying cables, flooring, wall finishing etc. Earlier in CIT vs. Hi Line Pens (P) Ltd. [2008] 306 ITR 182 (Del), another Division Bench of this Court made specific reference to Explanation 1 to Section 31(1) and Section 30(a)(i) and the word 'current repairs'. It was observed that the expenditure under the head 'current repairs' should be allowed as revenue deduction as by very nature tenancy right is for a limited period and does not create any asset. The question was answered in favour of the assessee and against the Revenue. In CIT vs. Escorts Finance Ltd. (2006) 205 CTR 574 (Del), yet again expenditure incurred on carrying out repairs to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Explanation 1 to Section 271 and show that the claim made by them or the explanation offered with regard to the claim made was bona fide and that the facts relating to the same and material for computation of the total income had been disclosed. These are two facets of clause (B) to Explanation 1. As far as disclosure of facts is concerned, this is clear from the note, which was attached with the return itself. We have quoted the relevant portion of the note above. Full and correct facts have been stated in the said note. The other question is whether the claim made was palpably wrong and legally untenable or a debatable and plausible claim on which the assessee did not succeed on legal interpretation. We have examined the nature of the claim made and the findings recorded by the High Court in their order dated 1st November, 2010. The claim made by the appellant may have been rejected, but it cannot be said that the same was not plausible or legally tenable. This aspect has been discussed above and it has been held that the claim made was bona fide. Regarding the legal opinion in writing, it is not mandatory for a person to obtain legal opinion in writing. Assessees do take leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in making payments towards advance tax. We are clear in our minds that the Revenue has not suffered any loss and, therefore, there can be no question of levying interest under s. 234B of the said Act. Thus, while we decide question 1 in favour of the Revenue and against the assessees, question 2 is decided in favour of the assessees. In view of this, the appeals are liable to be dismissed. It is ordered accordingly. The parties shall bear their own costs. 7. Learned counsel also relied upon the decisions in different High Courts which are as under : 1. In case of Price Waterhouse Coopers (P.) Ltd. Vs. Commissioner of Income-Tax, Kolkata- I, [2012] 25 taxmann.com 400 (SC), wherein it has been observed :- - 19. The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears to us that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , [2013] 40 taxmann.com 17 (Andhra Pradesh), wherein it has been observed :--- 4. Later on the assessment was reopened by issuing a notice to the assessee and when the assessment was reopened, she voluntarily offered ₹ 30,63,310 for tax. Before the AO, her advocate/chartered accountant stated that the amount was shown in the capital account and was not shown as a capital receipt. But since the issue had arisen, it was being offered as taxable income. 5. The AO accepted the amount as taxable income and levied the tax accordingly. 6. However, in addition to levying tax, the AO decided to impose penalty of ₹ 10,14,582 on the ground that the assessee had furnished inaccurate particulars of her income and concealed her income. 8. We have heard learned counsel for the Revenue and find that there is nothing to suggest that the assessee acted in a manner such as to lead to the conclusion that she had concealed the particulars of her income or had furnished inaccurate particulars of income. The admitted position is that the amount of ₹ 30,63,310 was shown by her in the return. That being the position, it cannot be said that there was any concealmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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