9911796707
TMI Blog2013 (12) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... ced hereunder: 1.a. On the facts and in the circumstances of the case, the learned CIT(A) has erred in deleting the penalty under section 271(1)(c) levied by the A.O amounting to Rs. 26,37,086/-. 1.b. The Ld. CIT(A) has failed to note that the decision in the case of CIT Vs. Bijli Cotton Mills (P) Ltd. (1979) 116 ITR 60 (SC) is not applicable in this case since the assessee itself was convince that the receipts in the name of Mahimai were not voluntary as they were collected on a given/fixed percentage of sale bill which reason prompted the assessee to offer the income in their return of income. 1.c. The Ld. CIT(A) has failed to note that the admission of the income in the third return of income was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de Assessment order dt.30.12.10 Rs. 2003-04 3,90,36,600/ 13.10.03/ 9.12.03 4,02,07,818 7.5.10 4,62,12,342 28.12.10 4,62,12,342 2004-05 4,86,48,930/- 20.10.04 4,79,09,979 7.5.10 5,54,66,556 28.12.10 5,54,66,556 2005-06 3,89,42,372/- 19.10.05 3,87,45,535 7.5.10 4,71,46,062 28.12.10 4,71,46,062 2006-07 2,83,63,800/ 26.10.06 2,83,46,870 7.5.10 3,59,71,711 28.12.10 3,59,71,711 2008-09 8,33,39,193/ 28.09.09 8,21,99,703 7.5.10 8,74,08,562 28.12.10 8,74,08,562 2009-10 -NA- 16,21,00,483 7.5.10 16,82,53,117 28.12.10 16,82,53,117 3. Enhancement of income for all the years were with regard to 'Mahumai' amounts collected by the assessee from its customers. Assessee is a manufacturer of fireworks and was selling such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment and to avoid protracted legal proceedings, A.O. was not impressed. Assessing Officer was of the opinion that the revised returns filed including the Mahumai as part of the income tantamounted to concealment. He, therefore, ruled that there was concealment of income equal to the amount Mahumai offered in the revised returns filed by the assessee and penalty was levied under section 271(1)(c) of the Act at the minimum level. 5. In its appeals before the CIT(A), argument of the assessee was that Mahumai was nothing but Dharmada which was held as not a part of the business receipts by Hon'ble Apex Court in Bijli Cotton Mills (P) Ltd. case. Assessee also brought to the notice of the CIT(A) that such collections were considered as a part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a belated return also could not be done. Therefore, according to him additional income returned though such revised returns could not be considered as a disclosure at all. This in turn made such amounts considered in the assessments, concealed income. Further according to him, Dharmada collection was not from any ordinary customers but from distributors. Distributors were showing their cost including Dharmada as a part of their purchase price. It cannot be said that the concerned distributors, who were the customers of the assessee, were giving any contribution voluntarily for any Dharmada. It was a compulsive collection made by the assessee and formed a part of its turnover. If assessee was allowed to go scot free, then it will in effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llections of the assessee. It is not disputed that the invoice raised by the assessee on its distributors separately showed the Dharmada. In such circumstances, it would be naive to presume that the distributors, who were paying the money to the assessee, based on such invoices were not aware that their payments to the extent of Dharmada amount were intended for charity. In any case, similar Dharmada receipts were considered as a part of the income of the assessee in a scrutiny assessment done for A.Y. 2001-02, which is a year prior to date of search. In assessee's appeal, the CIT(A)-II vide his order dated 22.09.04 clearly held that collection of Mahumai was for charitable purposes, of which the purchasing parties were aware of and the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y under section 271(1)(c) of the Act. Said decision was arrived at after considering the decision of Hon'ble Apex Court in the case of Dharmandra Textile Processors 306 ITR 277) and the later decision in the case of CCE Pune Vs. S.K.F. India Ltd (239 ELT 385). We are of the opinion that Ld. CIT(A) was justified in relying on the decision of Apex Court in the case of Reliance Petro Products Pvt Ltd. 322 ITR 158 for holding that a mere claim will not by itself render an assessee susceptible for levy of penalty. Various decisions relied on by the Ld.D.R is of little relevance, on the face of the earlier CIT(A)'s order for A.Y. 2001- 02 in assessee's case itself, holding that the Mahumai collections were not includable as part of assessee's inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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