- (1.) THE Revenue has preferred this appeal under s. 260A of the IT Act, 1961 (for short, "the Act") against the order dt. 28th proposing to raise following substantial questions of law : "1. Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal was right in law in upholding the order of the learned CIT(A) who deleted the penalty of Rs. 13,50,291 imposed under s. 271(1)(c) of the IT Act, on account of excess deduction claimed by the assessee under s. 80HHC by taking whole of the profit from export unit as eligible for deduction instead of taking into account the ratio of export turnover to total turnover while computing the said deduction ? 2. Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal in deleting the penalty levied by AO under s. 271(1)(c) in contravention of the order of the Hon'ble Madras High Court in the case of M. Sajjanraj Nahar and Ors. vs. CIT (2006) 204 CTR (Mad) 53 : (2006) 283 ITR 230 (Mad) and also in view of s. 271(1B) of the IT Act, is correct, when the AO had recorded initiation of penalty proceedings under s. 271(1)(c) in the assessment order ? 3. Whether the Hon'ble Tribunal in deciding that proving contumacious intent is an essential ingredient in levy of penalty in contravention of the provisions of a civil statute like IT Act in spite of there being so many judgements that breach of a civil obligation attracts levy of penalty whether the contravention was made by the defaulter with any guilty intention or not ? 4. Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal is right in law in relying upon the case law in CIT vs. N. Krishnan (1999) 153 CTR (Ker) 450 : (1999) 240 ITR 47 (Ker) : (1999) 107 Taxman 283 (Ker), when in the present case, the issue is that of book profits under s. 115JA, whereby income was assessed at a positive figure and assessed income was not loss -
(2.) THE AO did not accept computation of deduction claimed by the assessee under s. 80HHC of the Act while adding back the amount wrongly claimed to be deduction, penalty was also imposed. On appeal, CIT(A) deleted the penalty on the ground that merely for raising a debatable issue, penalty could not be imposed, in absence of any concealment or misrepresentation by the assessee. The said finding has been affirmed by the Tribunal in following terms: "....The assessee during penalty proceedings claimed that there is no concealment and the addition/disallowances has been made on account of difference of opinion. This factual matrix was not controverted by the Revenue. Now the question arises whether penalty can be imposed on account of difference of opinion. The obvious reply is 'no' because the whole problem started due to the difference of opinion, therefore, it cannot be said that the assessee furnished inaccurate particulars of income or concealed its income which are the necessary ingredients for imposing penalty under s. 271(1)(c) of the Act. The learned counsel for the assessee, during arguments contended that the matter was controversial till the decision of the Hon'ble apex Court in Ipca Laboratories was delivered as at the relevant time the decision in the case of Asstt. CIT vs. Avon Cycles Ltd. (2004) 82 TTJ (Chd) 127 Ipca Laboratories vs. Dy. CIT (2001) 170 CTR (Bom) 568 : (2001) 251 ITR 401 (Bom) was in favour of the assessee. It was also pleaded that in the own case of 2006. In the present appeal also the claim of the assessee was duly supported by certificate of chartered accountant. It is pertinent to mention here that the decision of the Bombay High Court in the case of Ipca Laboratories Ltd. (supra) was in favour of the assessee when the return was filed. However, this decision was later on reversed by the Hon'ble apex Court. In view of these facts, it cannot be said that the assessee concealed its particulars of income."
(3.) WE have heard learned counsel for the Revenue. In view of finding concurrently recorded by the CIT(A) and the Tribunal that there was no concealment or misrepresentation by the assessee, we do not find any fault with the impugned order setting aside the levy of penalty. No substantial question of law arises. The appeal is dismissed.;