2011 (11) TMI 504 - AT - Income Tax

Penalty u/s 271(1)(c) incorrect claim of depreciation on non-compete fees & difference in the claim of deduction u/s 10A & 10B - Held that - For deduction u/s 10A Tribunal itself for the same A.Y. has held in favor of assessee and whether non-compete fee is an intangible asset is not without doubt hence as held in the case of Reliance Petroproducts Pvt Ltd. (2010 (3) TMI 80 - SUPREME COURT) that making an incorrect claim in law would not tantamount to furnishing of inaccurate particulars. Same follows in difference in the claim of deduction u/s 10B on account of interest income and miscellaneous income as also on account of difference in turnover since there was no furnishing of inaccurate particulars by the assessee - in favour of assessee Failure to keep and maintain information and document in respect of international transaction Held that - Assessee s contention that it had all such records was not effectively rebutted by the Revenue at any point of time. Further, no change was considered necessary to the Arms Length Price, hence deletion of penalty is justified - Decided against the Revenue

Issues Involved:
1. Deletion of penalties levied under Section 271(1)(c) of the Income-tax Act, 1961.
2. Deletion of penalties levied under Section 271AA of the Income-tax Act, 1961.

Issue-wise Detailed Analysis:

1. Deletion of Penalties under Section 271(1)(c):

M/s Pentasoft Technologies Ltd. (Assessment Year 2003-04):
The Revenue's appeal concerns the deletion of penalties under Section 271(1)(c), which were levied due to two main reasons: incorrect claim of depreciation on non-compete fees and the exclusion of foreign exchange expenditure from export turnover without corresponding exclusion from total turnover. The CIT(Appeals) had deleted the penalty, and the Tribunal upheld this decision. The Tribunal referenced the Hon'ble Apex Court's ruling in CIT v. Reliance Petroproducts (P.) Ltd., which states that penalties under Section 271(1)(c) require concealment of income or furnishing of inaccurate particulars. The Tribunal found that the assessee's claim, although not accepted, was not a case of concealment or furnishing of inaccurate particulars. The Tribunal noted that the issue of non-compete fees as an intangible asset was debatable and not free from doubt, thus not warranting a penalty.

M/s Pentamedia Graphics Ltd. (Assessment Years 2002-03 and 2003-04):
The penalties were levied due to differences in the claim under Section 10B, specifically regarding interest income, miscellaneous income, and the treatment of foreign exchange expenditure. The CIT(Appeals) deleted the penalties, and the Tribunal upheld this decision. The Tribunal observed that the assessee's claims were bona fide and not false. For instance, the interest income was claimed as part of export profits because it was derived from margin money deposits, which was a plausible claim. The Tribunal reiterated that making an incorrect claim does not equate to furnishing inaccurate particulars, as per the Reliance Petroproducts case. Therefore, the penalties under Section 271(1)(c) were rightly deleted.

2. Deletion of Penalties under Section 271AA:

M/s Pentasoft Technologies Ltd. (Assessment Year 2003-04):
The penalty under Section 271AA was levied due to alleged non-maintenance of information as required under Rule 10D of the Income-tax Rules. The CIT(Appeals) deleted the penalty, and the Tribunal upheld this decision. The Tribunal noted that the Transfer Pricing Officer (TPO) did not find any specific failure in maintaining records but only a general statement of non-compliance. The Tribunal emphasized that the specific records not maintained should have been pointed out, which was not done. Moreover, since no adjustment was made to the Arms Length Price (ALP), any failure, if at all, was benign and had no effect on the value of international transactions.

M/s Pentamedia Graphics Ltd. (Assessment Year 2003-04):
The fact situation was similar to the case of M/s Pentasoft Technologies Ltd. The CIT(Appeals) deleted the penalty, and the Tribunal upheld this decision. The Tribunal found no recommendation for penalty proceedings under Section 271AA by the TPO and no findings of failure to maintain records as per Rule 10D. Thus, the deletion of the penalty was justified.

Conclusion:
In all the appeals, the Tribunal dismissed the Revenue's contentions and upheld the CIT(Appeals) orders deleting the penalties under Sections 271(1)(c) and 271AA. The Tribunal found no concealment of income or furnishing of inaccurate particulars by the assessees, and no specific failures in maintaining required records were pointed out by the Revenue. Therefore, the penalties were rightly deleted.

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