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TMI Blog2024 (8) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that in view of the facts the assessee cannot be alleged of mis-reporting of income, as it was not made with a malafide intention. Therefore, in our considered opinion, the penalty restricted to 100% of tax payable by CIT(A)/NFAC is not justified, as he himself admitted in his order that the assessee cannot be alleged of mis-reporting of income as it was not made with a malafide intention. Thus, in our view, the penalty in dispute deserves to be deleted. Decided in favour of assessee. - Shri Shamim Yahya, Accountant Member And Shri Vimal Kumar, Judicial Member For the Appellant : S /Shri K. Sampath, Advocate, R.K. Raghvan Sh. V. Rajkumar, Advs. For the Respondent : Shri M.P. Dwivedi, Sr. DR. ORDER PER SHAMIM YAHYA, AM : The Assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounting to Rs. 19,73,52,248/-, whereas the expenditure allowed by the DSIR vide Form 3CL amounting to Rs. 17,99,94,531/-. The AO assessed the total loss at Rs. 1,92,43,204/- and book profit u/s. 115JB at Rs. 14,07,69,338/-. Subsequently, the AO initiated penalty proceedings u/s. 270A of the Act for misreporting of income. The assessee during the course of penalty proceedings filed his reply and also relied on various case laws. The AO was not satisfied with explanation offered by the assessee and imposed penalty of Rs. 1,09,39,526/- u/s. 270A(9) of the Act being 200% of tax payable for misreporting of income. Against the aforesaid action of the AO, assessee preferred appeal before the Ld. CIT(A). Ld. CIT(A)/NFAC, Delhi vide his order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. AR that none of the stipulations as contained in clauses (a) to (f) of Sec. 270A (9) of the Act are attracted in the facts of the case and in the case of sister concern in identical circumstances viz., Subros Ltd. (placed at pages 19 to 23 of the Paper Book) similar penalty u/s. 271(1)(c) of the Act has been quashed by the Tribunal; in the case of another sister concern in identical circumstances viz., Sanden Vikas India Ltd. the penalty u/s. 271(1)(c) of the Act levied for the same default has been quashed by the Tribunal (Order is placed at pages 24 to 27 of the Paper Book.) and further it was submitted that in the case of a third sister concern viz., Ecocat India Pvt Ltd. ( copy of order placed at pages 28 to 38 of the Paper Book) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 3,47,82,000/- totaling to Rs. 11,99,96,354/- and allowable weighted deduction @ 150% of Rs. 11,99,96,354/- comes to Rs. 17,99,94,531/-. Thus, there was difference of Rs. 1,73,57,717/- (Rs.19,73,52,248 - Rs. 17,99,94,532/-. The AO disallowed the difference of Rs. 1,73,57,717/- by allowing expenditure of Rs. 1,15,71,811/- (4,63,53,811 - 3,47,82,000) as expenditure u/s. 35(1)(i) or u/s.37(1) of the Act. On the difference of Rs. 1,73,57,717/-, AO levied penalty Rs. 1,09,39,526/- @ 200% of tax payable stating that the assessee mis-reported its income. It is noted that the assessee has sought approval of the very same amount towards R D expenditure in the application filed before the DSIR. Only in the course of assessment proceedings when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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