9911796707
TMI Blog2013 (5) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... y the learned CIT(A) vide order dated 06.09.12, levied by the AO vide order dated 30.06.11 u/s. 271(1)(c) of the I.T.Act. 2.1 In brief the facts of the case are that the assessee, a private limited company engaged in the business of manufacturing and exporting of agro based seed oils, filed its return of income declaring total income at Rs.82,96,100/- and book profit u/s. 115JB of the I.T.Act at Rs.93,76,366/-. The AO during the assessment proceedings noticed that the assessee had claimed exemption u/s. 10B while working out profit u/s. 115JB of the I.T.Act inspite of the fact that as per the amended provisions of the I.T.Act, the assessee was not entitled to do so w.e.f. 01.04.2008 i.e. for the assessment year in question. The assessee vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnishing inaccurate particulars of claim. The learned CIT(A) thus held that the assessee was not entitled for exemption u/s. 10B for the relevant assessment year and he claimed the same wrongly. He confirmed the penalty levied by the AO. 2.2. Before us the learned AR has submitted that the Chartered Accountant of the assessee company while issuing the certificate in support of the book profits u/s. 115JB erroneously deducted the exempt income u/s. 10B under bona fide belief as he inadvertently failed to take note of the amendment brought in the relevant provisions of I.T.Act vide Finance Act 2007 w.e.f. 01.04.2008 whereby the exempt income u/s. 10B is not permissible for deduction while computing the book profits u/s. 115JB of the I.T.Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are that the self assessment tax of Rs.1,57,18,548/- calculated by the assessee in its return of income for A.Y. 2011-12 was not paid. The AO vide letter dated 21.10.2011 directed the assessee to show cause as to why penalty u/s. 221(1) r.w.s. 140A(3) should not be imposed for default in payment of self assessment tax. A subsequent notice dated 23.11.2011 was also issued to the assessee. In response the assessee agreed to make the payment by 21.12.2011. However, the assessee could make a payment of Rs.40 lacs only up to 21.12.2011. He paid a further sum of Rs.30 lacs on the date of penalty order i.e. 16.01.2012. So out of the total tax amount of Rs.1,57,18,158/- the assessee paid an amount of Rs.70 lacs only despite sufficient opportunitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely claimed that due to slump in market the payment could not be paid but he did not furnish any evidence in this regard. The assessee failed to show as to how and where its funds were held up and how it was facing financial difficulty with the support of any evidence. He therefore, observed that the assessee had failed to show any good or sufficient reasons for not making the payment of self assessed tax. He further observed that the AO had given sufficient opportunities to the assessee and the penalty was levied only on the amount which was outstanding on the day on which penalty order was passed. He, therefore, confirmed the penalty levied by the AO. The assessee is thus in appeal before us. 3.2 The learned AR has repeated the same cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court styled as "CIT v. Prarthana Construction Pvt. Ltd." Appeal No.1672/2010 decided on 15.11.2011. In the said case penalty of Rs.30 lacs was imposed by the AO against the principal tax payment of Rs.58.87 lacs. However, the Tribunal was of the opinion that penalty of Rs.30 lacs was excessive and, therefore, reduced the penalty by providing formula to impose penalty @15% per annum for every month of default till the actual payment. In appeal, the Hon'ble Gujarat High Court observed that though as per the provisions of section 221 of the Act penalty amount can be levied on the assessee up to total principal sum of tax due and there was no minimum amount prescribed under the said section, but that itself does not mean that the penalty can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to hold that penalty was excessive have not been brought to our knowledge. As observed above, each case has its own facts and for exercise of judicial discretion, no straight jacket formula can be adopted. 3.5 Coming to the facts of this case, despite availing sufficient opportunity, the assessee in this case failed to make the payment of tax at the time of passing of penalty order of the AO. Even the assessee could not substantiate its contention of financial crunch with any supporting evidence. However, the fact which cannot be ignored is that the assessee made the entire payment of tax along with interest before preferring the penalty appeal before the CIT(A) i.e. within a very short period of 30 days. In our view, reducing the penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
