9911796707
TMI Blog2018 (6) TMI 1614X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. (supra) and also the decision of the Hon'ble jurisdictional High Court in the case of Manjunatha Cotton & Ginning Factory (supra), since the present case in the absence of any finding by the AO that the explanation filed in response to show cause notice for levy of penalty is false or not bona fide and in absence of any conclusive evidence brought by the AO, we are of the considered opinion that mere addition to returned income does not result in automatic levy of penalty. Therefore, we uphold the reasoning of the CIT(A) in deleting penalty in respect of addition made of excess claim u/s 10B of the Act. 15. As regards excess claim on account of computation from export turnover of telecommunication charges, freight and travelling charges etc., the method of computation of done by the assessee-company is supported by the decision of the Hon'ble jurisdictional High Court in the case of CIT v. Tata Elxsi (349 ITR 98), the addition is made on mere debatable point of law. So, no penalty is leviable. Therefore, we do not find any justification in the grounds of appeal filed by the revenue and are accordingly rejected. The revenue's appeals are dismissed. 16. Now we shall de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 249 ITR 124/114 Taxman 203 (Guj) (c) Nainu Mal Het Chand v. CIT (2007) 294 ITR 185/160 Taxman 49 (All) (d) CIT v. Super Metal RE-rollers (P) Ltd. (2004) 265 ITR 82/135 Taxman 407 (Delhi) (e) Diwan Enterprises v. CIT (2000) 246 ITR 571 (Delhi) (f) CIT v. Shivnarayan Jamnalal & Co. (1998) 232 ITR 311/(1996) 89 Taxman 420 (MP) (g) CIT v. T.Abdul Majeed (1998) 232 ITR 50/(1997) 93 Taxman 491 (Ker) 17.1 The Hon'ble apex court in the case of Dilip N. Shroff v. Jt. CIT (2007) 291 ITR 519/161 Taxman 218 had held vide paras 56 and 57 as follows (page 546): "The term 'inaccurate particular's is not defined. Furnishing of all assessment of value of the property may not by itself be furnishing of inaccurate particulars. Even if the Explanations are taken recourse to, a finding has to be arrived at having regard to clause (a) of Explanation 1 that the Assessing Officer is required to arrive at a finding that the explanation offered by an assessee in the event he offers one, was false. He must be found to have failed to prove that such explanation is not only not bona fide but all the facts relating to the same and material to the income were not disclosed by him. Thus, apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered his income to taxation after a search was conducted at his business premises u/s 132 of the Act and therefore such a surrender cannot amount to voluntary surrender and the Assessing Authority was justified in imposing penalty under Section 271[1][c] of the Act, rejecting the explanation given by the Respondent-Assessee. He has relied upon the decision of this Court in the case of 'CIT v. Manjunatha Cotton & Ginning Factory' [2013] 35 taxmann.com 250/218 Taxman 423/359 ITR 565 (Kar.), while summarizing the legal position about imposition of penalty under Section 271[1][c] of the Act, holding that such imposition of penalty is not automatic and it depends upon the facts and circumstances of the case. The Co-ordinate Bench of this Court in the case of Manjunatha Cotton & Ginning Factory [supra], held as under: "Held accordingly, dismissing the appeals, (i) that merely because the assessee agreed to the addition and the assessment order was passed on the basis of this addition, when the assessee had paid the tax and the interest thereon in the absence of any material on record to show the concealment of income, it could not be inferred that the addition was on account of concea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court setting aside the findings of the Tribunal, held that explanation of the Assessee when such surrender of income was made by it to buy peace or to avoid litigation was not sufficient to satisfy the Explanation-1 to Section 271[1][c] of the Act and in these circumstances upholding the order of the High Court, the Hon'ble Supreme Court upheld the imposition of penalty in that case. The relevant portion of the Judgment of the Hon'ble Supreme Court is also quoted below for ready reference: "7. The AO, in our view, shall not be carried away by the plea of the assessee like "voluntary disclosure", "buy peace", "avoid litigation", "amicable settlement", etc. to explain away its conduct. The question is whether the assessee has offered any explanation for concealment of particulars of income or furnishing inaccurate particulars of income. Explanation to Section 271(1) raises a presumption of concealment, when a difference is noticed by the AO, between reported and assessed income. The burden is then on the assessee to show otherwise, by cogent and reliable evidence. When the initial onus placed by the explanation, has been discharged by him, the onus shifts on the Revenue to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings be initiated or not during the course of the assessment proceedings and the AO is not required to record his satisfaction in a particular manner or reduce it into writing. The scope of Section 271(1)(c) has also been elaborately discussed by this Court in Union of India v. Dharmendra Textile Processors (2008) 13 SCC 369 and CIT v. Atul Mohan Bindal (2009) 9 SCC 589. 11. The principle laid down by this Court, in our view, has been correctly followed by the Revenue and we find no illegality in the department initiating penalty proceedings in the instant case. We, therefore, fully agree with the view of the High Court. Hence, the appeal lacks merit and is dismissed." 6. The said decision does not help the contention of Revenue before us, as there is no finding of fact before us to the effect that there was no explanation on the part of the Assessee. On the contrary, the findings of Tribunal are in favour of the Assessee. 7. We are satisfied that in the facts of the present case before us, since the Tribunal has reiterated the findings of facts that both the additions made to the income of the Assessee having been set aside following the decision of the High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
