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TMI Blog2012 (11) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the assessee is not accepted by the AO for any reason – That is clearly not the intendment of the legislature - no infirmity in the orders of ld. CIT(A) - In the result the appeal of the revenue is dismissed. - ITA No.1193/Kol/2011 - - - Dated:- 8-6-2012 - Sri C.D. Rao, Sri George Mathan, JJ. For the Appellant: Shri B.Hazra For the Respondent: Shri M. Tiwary ORDER Per Shri C.D.Rao, AM This is an appeal filed by the revenue against order dated 30.06.2011 of CIT(A)-I, Kolkata pertaining to A.Yr. 2004-05. 2. The only issue raised by the revenue in this appeal is relating to deletion of penalty levied by AO u/s 271(1)(c) of the I.T.Act. 3. The brief facts of this issue are that the Assessing Officer levied p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 35D. Assessee was not entitled to get the deduction. Held, penalty u/s. 271(1)(c) for making false claim of deduction u/s. 350 was rightly levied. CIT -vs- Escorts I1narkc Ltd (2009) 183 Taxman 453 (Del.). From the aforesaid judicial decisions, it is abundantly clear that an improper or wrong claim of deduction amount to submission of inaccurate particulars of income and, therefore, the presumption provided in section 271(1)(c) is applicable to the facts of the present case and penalty has to be imposed ii) The Direct Tax Laws (Amendment) Acts of 1986, 1987 1989 amended the penalty provisions with a view to avoid the need of questions relating to mens rea, onus of prove and subjective satisfaction of the revenue as whether there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied on by ld. Counsel for assessee has deleted the penalty by observing that The appellant argued that the A.O. is unjustified in alleging concealment of income or furnishing inaccurate particulars of income for the reason that the company s claim for deduction relating to export incentive was not allowed in view of recent Apex Court decision dated 3 1/08/09 in the case of Liberty India, while the return was filed as back as in the year 2004 and even in the assessee s own case, the deduction was allowed by CIT(A). It has further stated that tax sought to be evaded considered by A.O. at Rs.25,25,159/- is opposed to facts as well as law. It is well known that tax sought to be evaded as per Explanation 4 to Section 271(1) means the differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is also a fact on record that the Dept. contested the findings of CIT(A) and Hon ble I.T.A.T. in their order dated 13.11.2009 reversed the order of CIT(A). Hence, it is beyond any controversy that the allegation regarding furnishing inaccurate particulars cannot hold good because of divergent findings of various appellate authorities. The Hon ble Supreme Court in the case of CIT, Ahmedabad -vs- Reliance Petroproducts Pvt. Ltd. vide its judgement dated 17.03.2010 held that: the argument of revenue that submitting an incorrect claim for expenditure would amount to giving inaccurate particulars of such income is not correct. By no stretch of imagination can the making of an incorrect claim in law tantamount to furnishing inaccurate pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this fact only the ld. CIT(A) has deleted the penalty and relied on the orders of the Hon ble Apex Court in the case of CIT vs Reliance Petro Products (P) Ltd 322 ITR 158 (SC). Therefore he requested to upheld the action of ld. CIT(A). 6. After hearing the rival submissions and on careful perusal of material available on record, the undisputed fact of this issue are that assessee has filed its return in the year 2004 and the ld. CIT(A) has granted relief. However, this Tribunal has reversed the orders of the ld. CIT(A) based on the decision of Hon ble Apex Court in the case of Liberty India Ltd. which was delivered on 31.08.2009 we are of the considered view that though the Hon ble Apex Court in the case of Liberty India Ltd. is retrospe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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