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TMI Blog2015 (6) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee withdrew its claim of deduction us/ 80IB of the Act before initiation of assessment proceedings. Therefore, we approve the conclusion of the CIT(A) deleting the penalty - Decided in favour of assessee. - ITA No. 237/Del/2013 - - - Dated:- 27-1-2015 - G. D. Agrawal, VP And Chandramohan Garg, JM,JJ. For the Appellant : Shri Vinay Jain, CA For the Respondent : Shri Gunjan Prashad, CIT DR ORDER Per: Chandramohan Garg: This appeal has been preferred by the revenue against the order of the CIT(A)-XVI, New Delhi dated 26.10.2012 in Appeal No. 16/11-12 for AY 2008-09. Although the revenue has raised as many as five grounds in this appeal but except ground no.1, other grounds are argumentative and supportive to the main ground no. 1 which reads as under:- 1. Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in deleting the penalty of ₹ 41,49,854/- imposed u/s 271(1)( c) of the I.T. Act, 1961 for furnishing of inaccurate particulars of income. 2. Briefly stated, the facts giving rise to this appeal are that the assessee while filing the return of income claimed deduction u/s 80IB of the Income Tax Act, 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that commencement of business certificate of Excise department was not available with it, still it did not file its revised return as per time allowed u/s 139(5) of the Act. The DR also mentioned that the CIT(A) has also ignored this important fact that the assessee accepted its mistake only after issuance of notice u/s 143(2)/142(1) of the Act i.e. after initiation of assessment proceedings. 5. Replying to the above, at the very outset, ld. AR has drawn our attention towards para no. 5.5 of the impugned order and submitted that the impugned deduction was claimed by the assessee under a bona fide mistake which he immediately rectified before commencement of assessment proceedings by its letter dated October 8, 2009. The AR has also drawn our attention towards assessment order para 3.1 at page 2 and submitted that date of the letter of the assessee filed before the AO during assessment proceedings was noted as 08.09.2010 which is wrong and factually the correct date was 8.10.09 by which the assessee withdrew its claim of deduction u/s 80IB of the Act. From bare reading of para 5.5 of the impugned order, we note that the CIT(A) has appreciated this fact and approved the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f CIT vs. Societex (2012) 24 Taxman.com 309 upheld the decision of Tribunal and CIT (Appeal) where the assessee in this case made provision for taxation under the head current Liabilities and the provision was not added back to the profit as per the Profit Loss Account. The Hon'ble ITA T held the mistake to be human bonafide clerical mistake which occurred while making the statement of income and it also held no satisfaction was recorded by the A.O in the assessment proceeding that the assessee was guilty of filing inaccurate particulars of income. It was therefore held that the penalty cannot be imposed on the assessee u/s 271 (1 ) (c) of the Act. 5.8 In the case of Dy. CIT vs. Tarun Agarwal 2009 (13) MTC 831, the ITAT Lucknow Bench 'A' held that the assessee had surrendered the amount before any specific detection of undisclosed income or even before the issue of notice. Even though a general enquiry was going on and notices had been issued to some of his relatives and the amount might have been surrendered because of compulsion of circumstances, it was not sufficient to penalize the assessee as the factum of detection was not there. In the instant case also, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we note that the AO made four additions and first addition was related to disallowance of deduction u/s 80IB of the Act on agreed basis and the AO did not record any satisfaction for imposing penalty u/s 271(1)(c) of the Act but at the same time, we clearly observe that the AO specifically and separately recorded satisfaction for imposing penalty in regard to other three additions which clarify the mind and object of the AO during assessment proceedings that he did not intend to impose penalty on the agreed addition of disallowance of deduction u/s 80IB of the Act. At this stage, we also note that the ld. DR has not disputed this fact that the assessee withdrew its claim on 9.10.2009 prior to issuance of notice u/s 142(1) of the Act i.e. prior to commencement of assessment proceedings. In this situation, we can safely presume that at the time of making addition on agreed basis, the AO, in fact, was not intended to initiate penalty proceedings on the count of first addition which was made on the basis of written letter of the assessee withdrawing the claim u/s 80IB of the Act dated 9.10.2009 which was filed prior to issuance of notice u/s 142(1) of the Act. Hence, we are of the op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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