9911796707
TMI Blog2012 (11) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... serving that "The Hon'ble ITAT "A" Bench, Kolkata vide order dt. 13.11.09 in ITA No.424/Kol/2008 has reversed the order of the ld. CIT(A) and confirmed the action of the assessing officer. Penalty proceeding u/s 271(1)(c) initiated in the course of original assessment u/s 143(3)/153C was revived and assessee was given opportunity to make submission." 3.1. After taking into consideration of the various submissions which was precisely mentioned by him are as under :- "a) Disallowance of claim made u/s. 801B does not indicate that assessee made an attempt to conceal income or furnish inaccurate particulars of income. b) There should be initial presumption that addition represents concealed income of the there should be mens rea for levy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attracts the penalty provisions of the law. In the instant case, assessec has claimed deduction u/s. 801B on DEPB benefits received during the previous year knowing fully well that such DEPB benefits do not form part of the eligible profit for the purpose of section 801B. The assessee has failed to bring any materials on record and or to show that such a wrong and improper claim of deduction was made in the return under certain bonafide belief. The assessee has not also been able to show that it has no knowledge of the wrongfulness of the act. In these circumstances, there is clear scope for the finding that the assessee had submitted inaccurate particulars of income and the difference between assessed income and income as returned by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n returned income The appellant had also relied on order u/s. 254 dated 22.03.2010. It has been stated that although tax on total income has been computed at Rs.25,25,159/- the assessee has been held liable to pay Rs. 30,65,115/- on the basis of Book Profit u/s. 115JB since it is higher. The provisions of Section 115JB also says that where total income as computed under the Act is less, the book profit shall be deemed to be the total income of the assessee on which taxes shall be payable. Tax payable u/s. 115JB as per Return filed by the Company was Rs.26,53,580, which was supported by Audit Certificate in the prescribed form 29B of the IT. Rules. In view of the above, the appellant argued that the penalty order u/s. 271(1)(c) is liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee." In view of the foregoing discussions, it is evident that the CIT(A) has granted relief to the appellant which has been reversed by the ITAT on the basis of judgement of the Apex Court in the case of Liberty India V CIT(317 ITR 218) delivered on 31.08.2009. In this case, the appellant claimed that the return was filed way back in the year 2004 and the CIT(A) has granted the relief to the appellant, thus the ground of furnishing inaccurate particulars by the appellant is not correct and valid." 3.5. Aggrieved by this revenue is in appeal before us. 4. At the time of hearing the ld. DR appearing on behalf of the revenue has reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has filed inaccurate particulars nor concealed income as defined u/s 271(1)(c) of the IT Act. It is further observed that the Hon'ble Apex Court in the case of CIT vs Reliance Petroproducts Ltd. (supra) judgement dated 17.03.2010 has also observed that "the assesee cannot be held guilty of furnishing inaccurate particulars - making an incorrect claim in law cannot tantamount to furnishing of inaccurate particulars- Merely because the assessee claimed deduction which has not been accepted by the Revenue, penalty under s.271(1)(c) is not attracted - If the contention of the revenue is accepted, the assessee would be liable for penalty under s.271(1)(c) in every case where the claim made by the assessee is not accepted by the AO for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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