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TMI Blog2012 (11) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act can be attributed to the assessee - at the time of filing of return the issue in question was debatable where two view were possible and therefore such a claim made in return of income, though found untenable by the Assessing Officer, cannot be construed as furnishing of inaccurate particulars of income within the meaning of Section 271(1)(c) of the Act – in favor of assessee - ITA No. 261/PN/11 - - - Dated:- 25-5-2012 - SHRI I.C.SUDHIR, SHRI G.S. PANNU, JJ. Appellant by : Shri Alok Mishra, CIT Respondent by : Shri Anuj Deshmukh ORDER PER G.S. PANNU, A.M: This appeal by the Revenue is directed against the order of the Commissioner of Income-tax (Appeals)-V, Pune dated 21.12.2010 which inturn ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was determined at ₹ 13,17,08,443/-, therefore the income computed under the provisions of Section 115JB of the Act being higher, the return was accordingly filed and taxes paid as per the provisions of Section 115JB of the Act. The return of income was taken up for assessment which was completed u/s.143(3)(ii) of the Act on 29.12.2006 determining Nil income as per the normal provisions of the Act and the Book profit u/s.115JB of the Act at ₹ 13,48,78,535. As a result the final assessed income was in terms of the provisions of Section 115JB of the Act. 3. While finalising the income as per the normal provisions of the Act, the Assessing Officer made the following additions:- Sr.No. Partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the CIT(A), and the penalty has been deleted, against which the Revenue is in appeal before us. Before us the Ld. DR appearing for the Revenue has contended that the assessee had indeed furnished inaccurate particulars qua the aforesaid four items of income and therefore, the penalty was justifiably imposed by the Assessing Officer. 5. On the other hand, the Ld. Counsel for the respondent assessee has vehemently pointed out that the penalty on all the four items of income is not exigible as there was no concealment or furnishing of inaccurate particulars of the income within the meaning of Section 271(1)(c) of the Act. 6. In so far as the additions of ₹ 3,73,78,483/- regarding prepayment of sales tax deferral loans, software ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee is that even if there was a default within the meaning of Section 271(1) (c) of the Act with respect to income determined as per normal provisions of the Act the same was not relevant because the assessee s income was finally assessed as per Section 115JB of the Act and therefore the penalty u/s.271(1)(c) of the Act is not leviable with regard to the aforesaid three additions totaling to ₹ 3,73,78,483/-. We find that the Hon ble Delhi High Court in the case of Nalwa Sons Investments Ltd., (Supra) accepted such a proposition and the following discussion is relevant :- 24. The income of the assessee was thus assessed under s.115JB and not under the normal provisions. It is in this context that we have to see and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty can be imposed u/s.271(1)(c) of the Act qua the three additions totaling to ₹ 3,73,78,483/- made under the normal provisions of the Act since the basis of the final assessment in this case is the income assessed u/s.115JB of the Act and taxes have been paid on the computation as made u/s.115JB of the Act. Therefore, the Assessing Officer erred in levying penalty on this aspect. Accordingly, on this aspect we uphold the ultimate conclusion of the CIT(A) in deleting the penalty, albeit on a different ground. 8. Another element of income on which penalty has been levied is with regard to a addition of ₹ 31,70,092/- made to book profits under Section 115JB of the Act. The said addition is on account of Provision for bad and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stment for the provision for doubtful debts debited in Profit and Loss A/c cannot be considered as furnishing of inaccurate particulars of income within the meaning of Section 271(1)(c) of the I.T. Act. 9. On the other hand, the Ld.DR appearing for the Revenue has defended the imposition of penalty by pointing out that the impugned addition has been accepted by the assessee and also not challenged in appeal before the Tribunal. 10. We have considered the rival stands on the aforesaid aspect and find that no default within the meaning of 271(1)(c) of the Act can be attributed to the assessee. Though the adjustment to the book profits made by the Assessing Officer while determining income u/s.115JB has become final as stated by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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