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TMI Blog2014 (12) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... n always take the shelter that he was under bona fide belief on the basis of such advice that deduction was claimed on the basis of such bona fide belief. Therefore, in our opinion this is not a fit case for levy of penalty - Decided in favour of assessee. - ITA No. 925/Chd/2013 - - - Dated:- 23-12-2014 - SHRI BHAVNESH SAINI AND SHRI T.R. SOOD, JJ. For the Appellant : Shri Sudhir Sehgal For the Respondent : Shri. S.K. Mittal ORDER T. R. Sood (Accountant Member).- The appeal filed by the assessee is directed against the order passed by the learned Commissioner of Income- tax (Appeals)-II, Ludhiana on August 1, 2013. 2. In this appeal the assessee has raised the following grounds : 1. That the wort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 1,97,78,564. Through questionnaire dated July 12, 2011 the assessee was asked to provide detailed note on admissibility of this deduction. Initially the assessee sought adjournments and ultimately it was submitted on October 18, 2011 that the deduction under section 80-IC was claimed as per the provisions of the Act and certificate issued by the chartered accountant. After few more enquiries ultimately on November 22, 2011 the assessee was asked to justify the deduction particularly because the deduction include a sum of ₹ 1,49,87,933 on account of export incentive. Thereafter on November 29, 2011 the assessee submitted in its written reply which is as under : Regarding the justification of claim of deductio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ₹ 51,01,720. 5. During the appeal proceedings it was mainly contended that since issue regarding deduction under section 80-IC was debatable and that is why the assessee had made a claim for deduction. The issue got finally settled after the pronouncement of the decision by the hon'ble Supreme Court in the case of Liberty India v. CIT [2009] 317 ITR 218 (SC). Further, it was submitted that the assessee is not a technical person and deduction was claimed on the basis of certificate issued by the chartered accountant in the Form 10CCB. There was no act of deliberate concealment, and therefore penal action was not attracted. Reliance was placed on various case law particularly on the findings of the hon'ble Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished in CTR only on September 17, 2009. It is not always possible for everybody to note judgment on the very first day. Further the return may have been finalised before the judgment came to the notice of concerned chartered accountant who has issued certificate in Form 10CCB for claim of deduction, therefore, by the time, the return was filed, it was a bona fide claim. Everything was disclosed in the return and nothing was concealed, therefore, penal action was not attracted. 8. As far as the findings of the Commissioner of Income-tax that issue was decided against the assessee by the hon'ble jurisdictional High Court is concerned, the pronouncement of a judgment which has been challenged before the Supreme Court is not law of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2010] 328 ITR 167 (P H) 4. CIT v. Amar Nath [2008] 16 DTR 326 (P H) 5. ITO v. Mahavir Cycle Industries [2010] 36 DTR (A. T.) 398 (Chan digarh) 6. Asst. CIT v. Perfect Forgings [2011] 11 ITR (Trib) 166 (Chandigarh) 10. He further submitted that the learned Commissioner of Income-tax has himself mentioned in his order that the chartered accountant could have revised his report after the decision of the hon'ble Supreme Court in the case of Liberty India v. CIT [2009] 317 ITR 218 (SC) which has not been done. This makes it clear that the assessee made the claim under the bona fide belief and if any bona fide error has been committed the same would not attract penal action and in this regard relied on the decision of the hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the hon'ble Delhi High Court in the case of CIT v. Eltek SGS P. Ltd. [2008] 300 ITR 6 (Delhi) was rendered on February 19, 2008 which was favourable to the assessee, therefore, the assessee had a right to claim deduction. It is not always necessary that everybody would became aware of the decision. Ultimately when the same issue was decided by the hon'ble Supreme Court on August 31, 2009 which is said to be published for the first time on September 17, 2009 and therefore there was very little gap between publication of the decision and filing of the return. It is also possible that return may have been finalised before publication of the decision, therefore at the time of making return the issue was debatable and penalty could n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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