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TMI Blog2017 (10) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the AO has been upheld by the Ld. CIT(A), does not imply that the assessee had filed 'inaccurate particulars of income'. We further note that the Tribunal in the case of the assessee for the assessment year 2007-08 title GE Capital Business Process Management Serves Pvt. Ltd. vs. ACIT [2015 (11) TMI 68 - ITAT DELHI] has deleted the quantum addition on account of license fee to the extent of ₹ 2,19,60,467/-. Therefore, we uphold the order of the Ld. CIT(A) of deleting the penalty in dispute and reject the grounds raised by the Revenue. Appeal filed by the Department stand dismissed. - I.T.A. No.4980/DEL/2014 - - - Dated:- 23-10-2017 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER For The Revenue : Sh. Arun Kumar Yadav, Sr. DR For The Assessee : Sh. Rahul Satija, Adv. ORDER PER H.S. SIDHU : JM The Revenue has filed this Appeal against the impugned Order dated 23.6.2014 of the Ld. CIT(A)-XV, New Delhi relevant to assessment year 2007-08. 2. The grounds raised in the Appeal read as under:- 1. Whether the Ld. CIT(A) is right in cancelling the penalty of ₹ 73,51,900/- imposed by the AO u/s. 271(1)(c) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly attracted in this case. Hence, he imposed the penalty to the extent of ₹ 73,91,000/- vide penalty order dated 26.3.2013 passed u/s. 271(1)(c) of the I.T. Act, 1961. Against the penalty order, the Assessee appealed before the Ld. CIT(A), who vide his impugned order dated 26.3.2014 has allowed the appeal of the assessee and deleted the penalty in dispute and held that the claim cannot be held as capital in nature. Aggrieved with the order of the Ld. CIT(A), Revenue is in appeal before the Tribunal. 4. Ld. Sr. DR relied upon the Order of the AO and reiterated the contentions raised in the grounds of appeal. 5. Ld. DR relied upon the penalty order passed by the AO and reiterated the contentions raised in the grounds of appeal. 6. On the other hand, Ld. AR relied upon the order of the Ld. CIT(A) and stated that he has passed the well reasoned order which does not need any interference on our part. At the time of hearing, Ld. Counsel of the assessee also filed the copy of the order dated 16.10.2015 passed in the case of the assessee for the assessment year 2007-08 in ITA No. 2806/Del/2011 (AY 2007-08) in the case of GE Capital Business Process Management Serves Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns concealment of income and furnishing of inaccurate particulars indicate some deliberation on the part of the assessee, though the word deliberately and the word willfully are no longer part of the statue. (ii) Mere omission or negligence would not constitute a deliberate act of suppressiio veri or suggestio falsi. (iii) Primary burden of proof is on the revenue. The statute requires satisfaction on the part of the Assessing Officer. He is required to arrive at a satisfaction so as to show that there is primary evidence to establish that the assessee had concealed the amount or furnished inaccurate particulars and this onus is to be discharged by the department. (iv) The Assessing officer while considering levy of penalty should consider whether the assessee has been able to discharge his part of the burden. He should not begin with the presumption that the assessee is guilty. (v) Though penalty proceedings under the income tax law may not be criminal in nature, they are still quasi criminal requiring the Department to establish that the assessee has concealed his income. (vi) It has to be understood that the Explanation to Section 271(1)(c) is an exception ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee whose claim was rejected by the assessing officer. What is sought to be covered under Section 271(l)(c) is concealment of particulars of Income or furnishing of inaccurate particulars of income and not making of an untenable claim. 7.9 From the various judicial precedents it is seen that the facts and circumstances in each case has to be seen in the context and then penalty provision should be applied to see whether there was the concealment of particulars of income or the appellant has furnished inaccurate particulars, so as to call for the penal action under Section 271(1)(c). 7.10 On careful consideration of the various grounds on which additions were made by the Ld. AO, it is to be ascertained whether the Assessee had concealed the particulars of income or furnished inaccurate particulars of income, in order to decide the appeal. 7.11 We find that the AO has levied the penalty by holding that the assessee had filed inaccurate particulars of income. This issue was earlier decided by the same Ld. CIT(A) and he while deciding the appeal for A.Y.2008-09, in which had held as under: 7.2 Regarding the Ground no. 2 of the appeal relating to treatment of L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially, in any manner {Clause 2.3} {v} The agreement is subject to termination where there is any 'breach in material terms including on the periodical payments for user' i.e., if there is a default in payment, then the agreement and consequentially the right of the Appellant to use the software stands terminated forth with {Clause 5. 1 {a}}. {v} Upon termination the right to use the licensed program shall end and the Appellant is required to with immediate effect deliver the licensed program to GECC and the Appellant is required to remove from its systems the licensed software {Clause 5.1 {a}}. 7.3 Keeping in view the above, I find that what is transferred to the Appellant through EULA is only a limited right to use the License for a limited period in a prescribed manner and subject to the specific conditions +put by the licensor. In view of the above, it is undisputed that the EULA did not have the effect of vesting in the Appellant any enduring benefit or any irrevocable transfer of bundle of rights on it. On the other hand, the Appellant is bound by various conditions in respect of the manner' of use of the License. Keeping in view the same, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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