THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21.04.2010
+ ITA 352/2010
COMMISSIONER OF INCOME TAX ... Appellant
- versus -
M/S SICLAIR EXPORTS LTD ... Respondent
Advocates who appeared in this case:
For the Appellant : Mr Abhishek Maratha, Sr Std Counsel For the Respondent : None CORAM:- HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may be allowed to
see the judgment ?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in Digest ?
BADAR DURREZ AHMED, J (ORAL)
1. This is an appeal filed by the Revenue against the order dated
14.05.2009 passed by the Income Tax Appellate Tribunal in respect of the
Assessment Year 1995-96 and it arises from the assessee’s appeal before the
Tribunal, being ITA No.762/DEL/2008.
2. The assessee had claimed deduction under Section 80HHC
without reducing brought forward losses. In the quantum proceedings, the
additions have been confirmed by the Tribunal. In separate proceedings
under Section 271(1)(C) of the Income Tax Act, 1961, both the Assessing
Officer and the Commissioner of Income Tax (Appeals) imposed penalty on
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the assessee. However, the Income Tax Appellate Tribunal, by virtue of the
impugned order, deleted the said penalty on the ground that the assessee’s
claim of deduction in 80HHC without reducing brought forward losses was
passed in view of the three decisions of High Courts. The Tribunal further
held that the matter was ultimately decided against the assessee by the
Tribunal following the decision of the Supreme Courts in the case of IPCA
Laboratories Limited: 266 ITR 521 (SC). The Tribunal correctly took the
view that when the assessee filed return, there was a difference of opinion
and there were three decisions in favour of the assessee which was
ultimately decided against the assessee only after the return was filed by him
and consequently, the assessee cannot be accused of concealment of
particulars of income or of furnishing inaccurate particulars of income.
3. The learned counsel for the Revenue submitted before us that all
the three decisions referred to by the Tribunal did not apply to the facts of
this case and there was only one of them, namely, CIT vs. Gogineni
Tobacco Limited : 238 ITR 970 (AP) which was relevant to the facts and
circumstances of the present case. Be that as it may, as long as there was a
decision of a High Court and there was no contrary decision of the
jurisdictional High Court or of the Supreme Court when the assessee filed
the return, it cannot be said that the assessee, having placed reliance on the
decision of the Andhra Pradesh High Court, had concealed any particulars or
had furnished inaccurate particulars of income. There is no question of
imposing a penalty in such a case. The Tribunal has correctly decided in
favour of the assessee and deleted the penalty. No substantial question of
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law arises for our consideration.
The appeal is dismissed.
BADAR DURREZ AHMED, J
V.K. JAIN, J
APRIL 21, 2010
bg
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