- (1.) PRESENT appeal under Section 260A of the IT Act, 1961 has been filed against the judgment and order dt. 12th Sept., 2008 passed by Tribunal Lucknow Bench 'A' Lucknow in appeal No. ITA No. 564/Luck/2008 for the asst. yr. 2003 -04.
(2.) FOLLOWING substantial question of law has arisen in the present case: (ii) On the facts and in the circumstance of the case whether the learned Tribunal has erred in holding that there was no concealment of income/furnishing of inaccurate particulars without considering the case of Revenue and appreciating that the assessee claimed the excess deduction under Section 10B even when he knew fully well that the export sale proceeds amounting to Rs. 29,48,843 have not been brought into India within the time -limit prescribed under Clause (3) of Section 10B. Facts giving rise to instant income -tax appeal are that the assessee filed the return of income on 29th March, 2004 declaring income of Rs. 42,01,300. The assessment was framed under Section 143(3) at an income of Rs. 69,10,841 on 31st March, 2006 and penalty proceedings under Section 271(1)(c) were initiated. The assessee had shown export sales of software to the tune of Rs. 2,33,66,220 and the net profit was shown at Rs. 2,25,36,654. The assessee in Form No. 56G, attached with the return of income, reported that an amount of Rs. 1,60,81,545 was brought into India and for remaining amount permission had been applied for. It was stated that entire profit of Rs. 2,25,36,542 was eligible for exemption under Section 10B of the IT Act. The AO noticed that extension was granted upto 31st Dec, 2003 which was further extended upto 31st March, 2004 in respect of amount to be brought into India. Since an amount of Rs. 29,48,843 was not received till the time of extension granted and the assessee had claimed the exemption in respect of its total export sales, the assessee was asked by the AO to explain as to why 90 per cent of the aforesaid amount, which worked out to Rs. 26,53,959 be not added in taxable profit of the assessee as he had already claimed exemption under Section 10B of the Act on this amount. Since no explanation was furnished the AO made the addition of that amount and also issued a show -cause notice under Section 271(1)(c) to the assessee in response to which a written reply was filed but the same did not find favour of the AO as having no force and accordingly levied the penalty of Rs. 7,96,200. The said order was assailed in appeal before CIT(A) inter alia on the grounds that the return of income was filed on the basis of accounts which were duly audited and the exemption under Section 10B was claimed by furnishing the report in Form No. 56G r/w Rule 16E, and as such there was no concealment of income. It was further stated that the addition made by the AO under Section 10B was based on the facts disclosed in the return of income by the assessee. It was contended that uncollected sums were export income from software not approved by the clients so the assessee did not receive the same. CIT(A) after considering the submissions of the assessee, held that the concealment of income was not established, therefore, no penalty was leviable. Thereafter an appeal was filed by the Department before the Tribunal and same was also dismissed.
(3.) SRI D.D. Chopra, senior learned standing counsel for the IT Department contended with vehemence that in the present appeal, case of Revenue has not at all been considered while extending benefit to assessee and as such decision -making process adopted by Tribunal is vitiated in law.;