Appellant :- Commissioner Of Income Tax, Meerut And Another

Transcription

1 HIGH COURT OF JUDICATURE AT ALLAHABAD Court No Case:- INCOME TAX APPEAL No of 2001 Appellant :- Commissioner Of Income Tax, Meerut And Another Respondent :- M/S Jindal Polyester & Steel Ltd. Ghaziabad Counsel for Appellant :- A.N. Mahajan,A.Kumar,B.J.Agarwal,D. Awasthi,G. Krishna,R.K. Upadhyay,S.Chopra Counsel for Respondent :- R.S. Agarwal Hon'ble Rajes Kumar,J. Hon'ble Dinesh Gupta,J. Heard Sri Shambhu Chopra learned Senior Standing Counsel of the Income Tax department and Sri Rupesh Jain appearing on behalf of the respondent. The following questions have been raised in the present Appeal. 1.Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is legally justified in cancelling the penalty levied under Section 271(1)(c) of the I.T.Act irrespective of the fact that the assessee claimed excess depreciation to the tune of Rs / than what was admissible to him as per the provisions of the Income Tax Act? 2. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is legally justified in cancelling the penalty levied under Section 271(1)(c) inspite of the fact that the assessee did not furnish any explanation either before the Assessing officer or before the Commissioner of Income Tax(A) for claiming excess depreciation than admissible under Income Tax Act and Explanation I to Section 271(1)(C) clearly states that where in respect of any facts material to the computation of income of any person, such person fails to offer an explanation,l the amount added in computing the total income of such person shall for the purpose of section 271(1)(c), be deemed to represent the income in respect of which particulars have been concealed? The brief facts of the case are that the respondent is a Company involved in the manufacture of steel pipes, Synthetic Filament Yarn and Polyster Clips, etc filed its return for the assessment year The return was for 23 months disclosing the total loss at Rs. 1,75,91,003/ computed in accordance with the provisions of Income Tax Act and has worked out its taxable liability under Section 115J of Rs.37,42640/. 1

2 The Assessing Authority computed books profit for the purpose of levying tax under Section 115 J at Rs 5,58,33,750/. The allegation of the Assessing Authority is that the Assessee has claimed extra depreciation under the Profit and Loss Account. The matter went in appeal before the Tribunal. The Tribunal has accepted the book profit disclosed by the Assessee for the purpose of levy of tax under Section 115J. This is not in dispute. The Assessing Authority however on the basis of the assessment order levied penalty under Section 271(1)(c) at Rs. one crore which has been reduced to Rs.74,17,870/ by Commissioner of Income Tax(Appeal) in the appeal against which the Assessee filed appeal before the Tribunal which has been allowed by the impugned order dated The Tribunal has deleted the penalty. The Tribunal has recorded the following finding: "We have carefully considered the fact and circumstances of the case. The sum and substance of the matter is that the income returned by Assessee stands accepted as the final taxable income. Therefore, the bonafide of the assessee can not be doubted. The assessee did not make a mistake in the calculation of income under the normal provisions of the Income Tax Act which was required only for comparison. There was in fact a calculation of bonafide mistake. The Income under the normal provisions of the Act had to be ignored because the income under Section 115J was always higher. All the facts relating to depreciation are fully disclosed in the notes on accounts accompanying the return. Even the computation of depreciation as per the Income tax Act was filled by the assessee on its own. The calculation under the normal provisions of the Income Tax Act had in any case to be ignored on the facts of the case and the same can not be the basis for levy of penalty under Section 271(1)(c) of the Act as the income was not assessed under the normal provisions of the Act. Even under the normal provisions of the Act, the income of the assessee has been calculated at nil. The assessee in support of the claim relied on the decision of Punjab and Haryana High Court in the case of Prithipal Singh and Co(183 ITR 69)) which is affirmed by the Supreme Court in Civil Appeal No.1961 of 1996 vide order dated " Learned counsel for the appellant submitted that the Assessee has wrongly claimed excessive depreciation by adopting the provisions under the Income Tax Act. He however admitted that the book profit disclosed by the assessee has been accepted by the Tribunal for the purposes of levy of tax under Section 115 J. He however further submitted that whether the depreciation is to be calculated in accordance with the Companies Act or under Income Tax Act for the purposes of computation of book profit is subject matter of consideration by the larger Bench of the Apex court in the case of Dynamic Orthpedics P. Limited Vs Commissioner of Income 2

3 Tax( 2010) 301 ITR page 300 Learned counsel for the respondent submitted that the book profit disclosed by assessee for the purpose of levy of tax under Section 115 J has been accepted by the Tribunal and against the order of Tribunal the Income Tax Appeal No.182 of 2000 filed by the Commissioner of Income Tax Appealhas been dismissed by this Court vide order dated thus the order of the Tribunal has become final. He further submitted that for the purposes of levy of penalty the book profit for the purpose of determination of liability under Section 115 J is relevant and not the Income as per the Income Tax Act and since the book profit disclosed by the assessee for the purpose of levy of tax under Section 115 J has been accepted the Tribunal has rightly deleted the penalty as there was no concealment. Reliance has been placed on the Division Bench decision of this Court in the case of Commissioner of Income Tax Vs Noida Vs Aleo Manali Hydro Power P Ltd (2013)38.com288 (and submitted that the decision of the this Court is based on the decision of Delhi High Court in the Case of Commissioner of Income Tax Vs Nalwa Sons Investments Ltd (2010)327 ITR page 543/194 Taxman 387 Delhi) against which SLP was dismissed by Apex Court. He further submitted that even in the false claim of depreciation penalty can not be levied Reliance has been placed on the case of Commissioner of Income Tax Vs Gold Coin Health Food reported in 2008(304) ITR page 308 We have considered the rival submissions. It is not in dispute that the Tribunal has accepted the book profit disclosed by the assessee in the assessment appeal which has been affirmed by this Court in the Appeal by its order dated in Appeal No.182 of This Court while dealing with the appeal arising from the assessment proceeding with respect to the determination of liability under Section 115 J has observed as follows: 6. On the third question, regarding change in method of charging depreciation from straight line to written down value method, the question, as rightly pointed out by the learned counsel for the respondent-assessee, is also covered by the decision of the Supreme Court in Apollo Tyres Vs. CIT [255 ITR 273]. In Malayalam Manorama Vs. CIT [300 ITR 251 (SC)], the Supreme Court following the ratio of the judgment in Apollo Tyres (Supra) held as follows:- "In Apollo Tyres (supra), this Court examined the object of introducing section 115J in the 1961 Act. The Court relied on the budget speech of the then Hon'ble Finance Minister of India made in the Parliament while introducing the said section. The relevant portion of the speech is reproduced as under: "It is only fair and proper that the prosperous should pay at least some tax. The phenomenon of so-called zero-tax highly profitable companies deserves attention. In 1983, a new Section 80-VVA was inserted in the Act so that all profitable companies pay some tax. This does not seem to have helped and is being 3

4 withdrawn. I now propose to introduce a provision whereby every company will have to pay a minimum corporate tax on the profits declared by it in its own accounts. Under this new provision, a company will pay tax on at least 30% of its book profit. In other words, a domestic widely held company will pay tax of at least 15% of its book profit. This measure will yield a revenue gain of approximately Rs.75 crores." The Court held that the purpose of introducing this section was that the Income Tax Authorities were unable to bring certain companies within the net of income tax because these companies were adjusting their accounts in such a manner as to attract no tax or very little tax. It is with a view to bring such of these companies within the tax net that section 115J was introduced in the 1961 Act with a deeming provision which makes the company liable to pay tax on at least 30% of its book profits as shown in its own account. For the said purpose, section 115J makes the income reflected in the companies books of accounts as the deemed income for the purpose of assessing the tax. If we examine the said provision in the above background, we notice that the use of the words in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act was made for the limited purpose of empowering the assessing authority to rely upon the authentic statement of accounts of the company. While so looking into the accounts of the company, an Assessing Officer under the Income Tax Act has to accept the authenticity of the accounts with reference to the provisions of the Companies Act which obligates the company to maintain its account in a manner provided by the Companies Act and the same to be scrutinized and certified by statutory auditors and will have to be approved by the company in its general meeting and thereafter to be filed before the Registrar of Companies who has a statutory obligation also to examine and satisfy that the accounts of the company are maintained in accordance with the requirements of the Companies Act. In spite of all these procedures contemplated under the provisions of the Companies Act, the Court observed that it is difficult to accept the argument of the Revenue that it is still open to the Assessing Officer to rescrutinize this account and satisfy himself that these accounts have been maintained in accordance with the provisions of the Companies Act. The Court categorically held that: "... the Assessing Officer while computing the income under Section 115-J has only the power of examining whether the books of account are certified by the authorities under the Companies Act as having been properly maintained in accordance with the Companies Act. The Assessing Officer thereafter has the limited power of making increases and reductions as provided for in the Explanation to the said section. To put it differently, the Assessing Officer does not have the jurisdiction to go behind the net profit shown in the profit and loss account except to the extent provided in the Explanation to Section 115-J"

5 Mr. Vellapally has also drawn our attention to the division bench judgment of the Bombay High Court in Kinetic Motors v. Deputy Commissioner of Income Tax (2003) 262 ITR 33 and submitted that in this case the Bombay High Court relied on the said judgment of Apollo Tyres and held the issue in favour of the assessee. In this case, the Division Bench of the Bombay High Court observed as under: "The short question that arises for consideration in this tax appeal is whether it is open to the Assessing Officer to make adjustment to the book profits beyond what is authorised by the definition given in Explanation to Section 115J of the Income- tax Act, if the accounts are prepared and certified to be in accordance with Parts II and III of Schedule VI to the Companies Act, In the case of Apollo Tyres Ltd. [2002] 255 JTR 273, the apex court held that while computing the income under Section 115J of the Income-tax Act, the Assessing Officer has only power to examine whether the books of account were certified by the authorities under the Companies Act as having been properly maintained in accordance with the Companies Act. It is further held that the Assessing Officer thereafter has limited powers of making increases and reductions as provided for in the Explanation to the said section. The apex court further held that the Assessing Officer does not have the jurisdiction to go beyond the net profits shown in the profit and loss account, except to the extent provided in the Explanation to Section 115J of the Income-tax Act. In the instant case, the accounts maintained by the assessee are certified by the auditors. Under the circumstances, the book adjustment made by the Assessing Officer being contrary to the decision of the apex court, question No. 1 is answered in the negative and in favour of the assessee." In view of our answer to question No. 1, question No. 2 becomes academic. It is not in dispute that under the Companies Act, 1956, both straight line method and written down value method are recognised. Therefore, once the amount of depreciation actually debited to the profit and loss account is certified by the auditors, then, as per the decision of the apex court in the case of Apollo Tyres Ltd. [2002] 255 ITR 273, question No. 2 has to be answered in the negative and in favour of the assessee." This Court while dealing with the penalty under Section 271(1)(c) Commissioner of Income Tax Vs Aleo Manali Hydro Power (P) Limited has held as follows: "The Delhi High Court held that in respect of company in question on the basis of normal provision income was assessed at negative i.e. on loss of Rs.36,95,21,018/-. The company was MAT company and that the assessment under Section 115-JB resulted in calculation of profit at Rs.4,01,63,180/-. The income of the assessee was thus assessed under Section 115-JB and not under normal provision. It was held; "no doubt, there was concealment but that had its repercussions only when the assessment was done under the normal procedure. The assessment as per the normal procedure was, however, not acted upon. On the contrary, it is the deemed income assessed u/s 115JB which has become the basis 5

6 of assessment as it was higher of the two. Tax is thus paid on the income assessed u/s 115JB. Hence, when the computation was made u/s 115JB, the concealment had no role to play and was totally irrelevant. Therefore, the concealment did not lead to tax evasion at all. The upshot of the aforesaid discussion would be to sustain the order of the Tribunal, though on different grounds. Therefore, while the reasoning and approach of the Tribunal is not tenable, for the reasons disclosed above, penalty could not have been imposed even in respect of the false claim of depreciation made by the assessee. CIT Vs. Gold Coin Health Food (P) Ltd., (2008) 218 CTR (Supreme Court 359: (2008) 11 DTR (Supreme Court 185: (2008) 304 ITR 308 (Supreme Court distinguished." On the facts and circumstances we are of the view that the issue involved is squarely covered by Division Bench Decision of this Court in the case of Commissioner of Income Tax Noida Vs Aleo Manali Hydro Power P LTd (Supra) The book profit disclosed by the assessee for the purpose of the liability of tax under Section 115 J is relevant and not the Income determined under the provisions of Income Tax Act. The Tribunal on the facts and circumstances of the case has further recorded the finding that on the facts and circumstances of the case and on the bonafide of the explanation given by the assessee and the disclosure made in the accounts accompanying the return, no penalty is leviable. The finding of the Tribunal in this regard is finding of fact. In view of the aforesaid discussion both the question No.1 and 2 are answered in favour of assessee in affirmative. The Appeal is accordingly dismissed. Dt /cps 6

7 HIGH COURT OF JUDICATURE AT ALLAHABAD Court No Case:- INCOME TAX APPEAL No of 2013 Appellant :- Commissioner Of Income Tax, Noida, Gautam Budh Nagar Respondent :- M/S Aleo Manali Hydro Power (P) Ltd. Counsel for Appellant :- Dhananjay Awasthi Hon'ble Sunil Ambwani,J. Hon'ble Surya Prakash Kesarwani,J. We have heard Shri Dhananjay Awasthi, learned counsel for the appellant. This income tax appeal under Section 260-A of the Income Tax Act, 1961 arises out of the judgment and order dated passed by the Income Tax Appellate Tribunal in ITA No.5010/Del/2012 for the assessment year The revenue has preferred this appeal on the following questions of law:- "I. Whether on the facts and circumstances of the case, the ITAT erred in law in deleting the penalty imposed u/s C on the ground that assessee had offered an explanation regarding calculation u/s. 115-JB and that concealment had no role to play and it did not lead to tax evasion. II. Whether on the facts and circumstances of the case, the ITAT was erred in law in coming to a conclusion that there was no concealment as assessment was not done under normal procedure which is contrary tot he Apex Court's finding in the matter of CIT Vs. M/s Nalwa Sons Investments Ltd. III. Whether on the facts and circumstances of the case, the ITAT erred in deleting the penalty ignoring the provisions and language of Section 271-1C and the phrase "inaccurate particulars" which would include any levy of penalty on giving unsatisfactory reply which would invariably benefit the assessee, where none was forth coming." Brief facts giving rise to this income tax appeal are that the assessee engaged in the business of generation of power filed a return electronically for the assessment year on declaring income of Rs.72,48,440/- and book profit under Section 115JB of Rs.6,88,43,429/-. The case was processed under Section 143 (1) and thereafter return was selected under scrutiny with the approval of CCIT, Ghaziabad. The assessment under Section 143 (3) was completed vide order dated on an income of Rs.1,38,10,815/- against the returned income of Rs.72,48,440/- making addition of Rs.65,59,330/- on account of CDM expenses income and simultaneously 7

8 penalty proceedings under Section 271 (1) (c) were initiated. In the penalty proceedings the A.O. was satisfied that the assessee had furnished inaccurate particulars of the income to the extent of Rs.65,62,375/- and is thus liable to pay penalty under Section 271 (1) (c) of the Act. Taking into consideration the minimum and maximum penalty, which was payable on furnishing inaccurate particulars, the A.O. thus imposed minimum penalty of Rs.22,31,000/- under Section 271 (1) (c) of the Act and directed the assessee to pay the same. In appeal the CIT (A) recorded following reasons for upholding the order:- "A plain reading of section 271 (1) (c) reveals that penalty u/s 271 (1) (c) of the Act is imposable only if the assessee has either (a) concealed the particulars of income; or (b) furnished inaccurate particulars of income. The language used in clause (c) of section 271 (1) is 'has concealed the particulars of his income, or furnished 'inaccurate particulars of such income. Thus, both in case of concealment and inaccuracy, the term 'particulars of income' has been used. The legislature has not used the words 'concealed his income. From this it would be apparent that penal provision would operate when there is a failure to disclose "fully or truly all the particulars of income" which are material to the computation of income. The term 'particular of income' refers to the fact which leads to the correct computation of income in accordance with the Act. So when any fact material to the correct computation of total income is either not filed, or is not accurate then the assessee would be liable to penalty U/s 271 (1) (c). Having carefully considered the submission/ reply of the assessee and facts of the case as discussed above and also the provisions of section 271 (1) (c) I am convinced that the AO was right in holding that the assessee had furnished inaccurate particulars of its income in respect of CDM income to the extent of Rs.65,62,375/- and imposing a penalty of Rs.22,31,000/- u/s 271 (1) (c) of the Act. In the result the appeal is dismissed." The ITAT found that the case is squarely covered by the judgment of Delhi High Court in CIT v. Nalwa Sons Investment Ltd., (2010) 327 ITR 543. An SLP was filed by the Commissioner of Income Tax against the judgment, which was dismissed by the Supreme Court on 4th May, The judgment dated 4th May, 2012 dismissing the appeal against the judgment of the Delhi High Court is reported in (2012) 21 taxmann.com 184 (SC). The Delhi High Court held that in respect of company in question on the basis of normal provision income was assessed at negative i.e. on loss of Rs.36,95,21,018/-. The company was MAT company and that the assessment under Section 115-JB resulted in calculation of profit at Rs.4,01,63,180/-. The income of the assessee was thus assessed under Section 115-JB and not under normal provision. It was held; "no doubt, there was 8

9 concealment but that had its repercussions only when the assessment was done under the normal procedure. The assessment as per the normal procedure was, however, not acted upon. On the contrary, it is the deemed income assessed u/s 115JB which has become the basis of assessment as it was higher of the two. Tax is thus paid on the income assessed u/s 115JB. Hence, when the computation was made u/s 115JB, the concealment had no role to play and was totally irrelevant. Therefore, the concealment did not lead to tax evasion at all. The upshot of the aforesaid discussion would be to sustain the order of the Tribunal, though on different grounds. Therefore, while the reasoning and approach of the Tribunal is not tenable, for the reasons disclosed above, penalty could not have been imposed even in respect of the false claim of depreciation made by the assessee. CIT Vs. Gold Coin Health Food (P) Ltd., (2008) 218 CTR (Supreme Court 359: (2008) 11 DTR (Supreme Court 185: (2008) 304 ITR 308 (Supreme Court distinguished." The reasoning given by the Delhi High Court has been approved on merits by the Hon'ble Supreme Court. In the circumstances the questions raised in this appeal are covered and do not require further examination. The income tax appeal is accordingly dismissed. It is made clear that the observations made by us are in respect of MAT companies, which are assessed under Section 115-JB, where the furnishing of inaccurate particulars does not result into any evasion of tax. The findings cannot be used in case of normal assessment or in any other case, where the income tax authorities may find that there is evasion of tax by assessee. Order Date: SP/ 9