(Per : HONOURABLE MS JUSTICE SONIA GOKANI)
1. Following is the question proposed for determination by the Revenue in the present Tax Appeal where it has challenged the order of Income Tax Appellate Tribunal ("the Tribunal" for short) dated 9.4.2010:-
"Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right in law in deleting the penalty of Rs.10,95,800/- imposed by the Assessing Officer under section 271(1)(c) of the Income Tax Act?
2. Heard learned Senior Counsel Mr. M.R. Bhatt for the Revenue, who has strenuously argued that there is apparent error on the part of the Tribunal in deleting the penalty on account of addition made on the basis of estimation.
3. As can be noted from the order of the Tribunal, it noted the fact that the order of Assessing Officer in applying the gross profit rate of 9.64% was reduced by the Tribunal to 8.50% and addition was ultimately directed on the basis of reduced gross profit rate. It also relied upon the decision of CIT(Appeals) which says that if additions are confirmed on account of gross profit rate, the assessee could not be said to have concealed the particulars of the income relying on the judgment of this Court in the case of Commissioner of Income-Tax vs. Subhash Trading Company reported in [1996]221 ITR 110 as well as in the decision of Commissioner of Income-Tax vs. Reliance Petroproducts Pvt. Ltd. reported in [2010]322 ITR 158 (SC), which held that no penalty could be levied.
4. On closely examining the order of the Tribunal, we find that there is no justification in interfering with the same. Although the Tribunal could have worded it differently and in a better fashion, the fact remains that there is no material to prove that there were inaccurate particulars furnished by the assessee respondent or there was any concealment on the part of the assessee. As can be seen also from the decisions relied upon by the Tribunal, if there is a claim made by the assessee, which is not accepted that would not ipso facto give rise to the levying of the penalty. A mere making of claim which is not accepted would not result into holding of furnishing of inaccurate particulars. However, as can be noted from the material on record, there are no ingredients to attract penalty proceedings and, therefore, Tax Appeal is dismissed.
(Akil Kureshi, J. ) (Ms.
Sonia Gokani, J.) sudhir Top