ITO, Panipat v. M/s. Kesri International, Panipat

ITA 4143/DEL/2009 | 2001-2002
Pronouncement Date: 18-02-2010 | Result: Dismissed

Appeal Details

RSA Number 414320114 RSA 2009
Assessee PAN AAOFK4594N
Bench Delhi
Appeal Number ITA 4143/DEL/2009
Duration Of Justice 3 month(s) 27 day(s)
Appellant ITO, Panipat
Respondent M/s. Kesri International, Panipat
Appeal Type Income Tax Appeal
Pronouncement Date 18-02-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 18-02-2010
Date Of Final Hearing 18-02-2010
Next Hearing Date 18-02-2010
Assessment Year 2001-2002
Appeal Filed On 22-10-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUN AL DELHI BENCH D: NEW DELHI BEFORE SHRI C.L. SETHI JUDICIAL MEMBER & SHRI SHAMIM YAHYA ACCOUNTANT MEMBER ITA NO.4143 & 4144/DEL/2009 ASSESSMENT YEAR : 2001-02 & 2002-03 INCOME TAX OFFICER WARD 4 PANIPAT VS. M/S. KESRI INTERNATIONAL SANOLI ROAD VPO NIMBRI PANIPAT (APPELLANT) (RESPONDENT) PAN : AAOFK 4594 N APPELLANT BY : SHRI ANOOP KUMA R SINGH SR. DR RESPONDENT BY : SHRI GURJEET SINGH CA O R D E R PER: C.L. SETHI J.M. THESE TWO APPEALS FILED BY THE REVENUE ARE DIRE CTED AGAINST TWO SEPARATE ORDERS BOTH DATED 21.08.2009 PASSED BY T HE LD. CIT(A) DELETING THE PENALTY AMOUNTING TO RS. 2 06 180/- AND 2 52 61 0/- LEVIED BY THE AO U/S. 271(1)(C) OF THE INCOME TAX ACT 196 (THE ACT ) FOR THE A.Y. 2001- 02 AND 2002-03 RESPECTIVELY. 2. IN THIS CASE THE ASSESSEE CLAIMED DEDUCTION U/S . 80IB ON EXPORT INCENTIVE I.E. DUTY DRAWBACK/DEPB WHICH WERE DISAL LOWED BY THE AO IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN TH E CASE OF CIT VS. STERLING FOODS INDIA 237 ITR 379 (SC). THE AO THEN INITIATED PENALTY ITA NO.4143 & 4144/DEL/2009 PAGE 2 OF 4 PROCEEDINGS U/S. 271(1)(C) OF THE ACT AND HE ALSO FINALLY LEVIED THE PENALTY IN BOTH THE ASSESSMENT YEARS. 3. ON AN APPEAL THE CIT(A) HAS DELETED THE PENALTY BY TAKING A VIEW THAT IN THE LIGHT OF THE VARIOUS DECISION OF THE TR IBUNALS AND HIGH COURTS TWO VIEWS WERE CLEARLY POSSIBLE WITH REGARD TO THE ALLOWABILITY OF DEDUCTIONS U/S. 80 IB IN RESPECT OF EXPORT INCENTIV E. 4. HENCE THE DEPARTMENT IS IN APPEAL BEFORE US. 5. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULL Y GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. 6. IN THE PRESENT CASE IT IS NOT IN DISPUTE THAT T HE ASSESSEE HAS FURNISHED THE DETAILS OF THE ITEMS IN RESPECT OF WH ICH THE ASSESSEE CLAIMED DEDUCTION U/S. 80 IB OF THE ACT. IN THE PRESENT CAS E THE RETURNS WERE FILED BY THE ASSESSEE ON 31.10.2001 AND 31.10.2002 FOR TH E ASSESSMENT YEARS 2001-02 AND 2002-03 RESPECTIVELY WHERE THE ASSESSE E MADE A CLAIM OF DEDUCTION U/S. 80 IB ON DUTY DRAWBACK AND DEPB. TH E QUESTION AS TO WHETHER THE ASSESSEE IS ENTITLED TO CLAIM DEDUCTION U/S. 80 IB ON DUTY DRAWBACK AND DEPB HAS BEEN RECENTLY SETTLED BY THE HONBLE SUPREME COURT IN THE CASE OF LIBERTY INDIA VS. CIT (2009) 3 17 ITR 218 (SC). PRIOR TO THAT SEVERAL HIGH COURTS HAVE TAKEN A VIEW THAT DEDUCTION U/S. 80 IB IS AVAILABLE EVEN IN RESPECT OF DUTY DRAWBACK AN D DEPB. THE HONBLE ITA NO.4143 & 4144/DEL/2009 PAGE 3 OF 4 PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT LUDH IANA VS. ARISUDANA SPINNING MILLS LTD. LUDHIANA VIDE ORDER DATED 19.1 1.2009 IN ITA NO. 410 TO 412/2009 HAS TAKEN A VIEW THAT NO PENALTY U/ S. 271(1)(C) IS IMPOSABLE IN RESPECT OF CLAIM ON EXPORT INCENTIVE U /S. 80 IA OF THE ACT. WHILE TAKING THIS VIEW THE HONBLE PUNJAB & HARYAN A HIGH COURT HAS ALSO CONSIDERED THE DECISION OF HONBLE APEX COURT IN THE CASE OF LIBERTY INDIA VS. CIT WHERE THE DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF LIBERTY INDIA VS. CIT 293 ITR 250 (P&H) WAS UPHELD. THE RELEVANT OBSERVATION OF THE HONBLE PU NJAB & HARYANA HIGH COURT IN THE CASE OF CIT LUDHIANA VS. ARISUDANA SPI NNING MILLS LTD. LUDHIANA (SUPRA) IS REPRODUCED BELOW: THE AFORESAID FINDING OF FACT ARRIVED AT BY THE ITAT CANNOT BE SAID TO BE PERVERSE OR AGAINST THE MATERIAL AVAILABLE ON THE RECORD. WHEN THE RETURNS OF INCOME WERE FILED THE ISSUE WITH REGARD TO THE ENTITLEMENT OF DEDUCTION U/S. 80 IA ON THE PROFITS DERIVED FROM TRADING TURNOVER I.E. TRADING IN THE RAW WOOL AND KNITTED CLOTH WAS DEBTABLE AND THIS ISSUE WAS SET TLED WITH THE JUDGMENT OF THIS COURT IN M/S. LIBERTY IND IA LTD. (SUPRA) WHICH HAS BEEN UPHELD BY THE SUPREME COURT IN M/S. LIBERTY INDIA (SUPRA). THEREFORE THE ITAT HA S RIGHTLY COME TO THE CONCLUSION THAT THE ASSESSEE DI D NOT DELIBERATELY OR CONSCIOUSLY CONCEALED THE TRUE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTI CULARS OF INCOME. THE JUDGMENT CITED BY THE COUNSEL FOR T HE APPELLANT IS NOT APPLICABLE IN THE FACTS AND CIRCUM STANCES OF THE CASE WHERE THE PENALTY HAS BEEN DELETED ON THE BASIS OF AFORESAID FINDING OF FACT. IN VIEW OF THE AFORESAID FINDING OF THE FACT IN OUR OPINION NO SUBSTANTIAL QUESTION OF LAW IS ARISING O UT OF ITA NO.4143 & 4144/DEL/2009 PAGE 4 OF 4 THE ORDER OF THE ITAT. HENCE THESE APPEALS ARE DISMISSED. 7. IN VIEW OF THE ABOVE DISCUSSIONS WE FIND NO INF IRMITY IN THE ORDER OF THE LD. CIT(A) WHILE DELEING THE PENALTY LEVIED BY THE AO U/S. 271(1)(C) IN RESPECT OF ASSESSEES CLAIM OF DEDUCTI ON U/S. 80 IB ON EXPORT INCENTIVE. THE ORDER OF THE CIT(A) IS THEREFORE UPHELD IN BOTH THE YEARS. 8. IN THE RESULT THESE TWO APPEALS FILED BY THE R EVENUE ARE DISMISSED. 9. THIS DECISION IS PRONOUNCED IN THE OPEN COURT ON 18 TH FEBRUARY 2010. SD/- ( SHAMIM YAHYA) ACCOUNTANT MEMBER SD/- (C.L. SETHI) JUDICIAL MEMBER DATED: 18 TH FEBRUARY 2010 *NITASHA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT NEW DELHI. BY ORDER DEPUTY REGISTRAR