THE ADIT.,(INTNL.TAXN.), AHMEDABAD vs. JOSHI TECHNOLOGIES INTERNATIONAL INC.,, AHMEDABAD

आयकर अपील�य अ�धकरण, अहमदाबाद �यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’C’’ BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA No.2739/Ahd/2011 �नधा�रण वष�/Asstt. Year: 2005-2006 And ITA No.2477/Ahd/2012 �नधा�रण वष�/Asstt. Year:2001-2002

A.D.I.T. (Intl. Taxn.), Joshi Technologies International Ahmedabad. Vs Inc., 402, Heritage, Usmanpura, Ahmedabad-380014.

PAN: AAACJ9592P

(Applicant) (Respondent) : Revenue by Shri O.P. Sharma, CIT. D.R Assessee by : Shri Sanjay R. Shah, A.R सुनवाई क� तार�ख/Date of Hearing : 21/10/2019 घोषणा क� तार�ख /Date of Pronouncement: 13/01/2020 आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:

The captioned appeals have been filed at the instance of the Revenue against the separate orders of the Learned Commissioner of Income Tax (Appeals), Gandhinagar [Ld.CIT(A) in short], dated 21/08/2012 & 05/08/2011 arising in the matter of penalty order passed under s. 271(1)(c) of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to Assessment Years (A.Ys) 2001-02 & 2005-06.

ITA No.2739/Ahd/2011 & 2477/Ahd/2012 A.Ys.2005-06 &2001-02 2 The Revenue in ITA No. 2739/Ahd/2011 for A.Y.2005-06 has raised the following grounds of appeal:

3.1 Subsequently the L&T relinquished its share in the project and assigned its whole share in the project to the assessee. Accordingly the assessee is a sole operator of these oil fields as on date. The assessee during the year claimed the deduction under section 42 of the Income Tax Act.

ITA No.2739/Ahd/2011 & 2477/Ahd/2012 A.Ys.2005-06 &2001-02 3 3.2 However the AO was of the view that the provision of section 42 of the Income Tax Act is a special provision which provides for deduction to the assessee engaged in the business of prospecting, extraction etc., for mineral oil and subject to the conditions specified under section 42 of the Act as detailed under: i- The agreement should have been entered with the Government. ii- The agreement has been laid on the table of each house of parliament. iii- The deduction/allowance will be available with respect to the items specified in sub-clause (a), (b) and (c) of section 42 of the Act if provided in the agreement entered with the Government of India. 3.3 The AO also noted that the field assigned to the assessee was already discovered by the ONGC as it was clearly mentioned in the production sharing contracts entered between the Government and assessee. As per the production sharing contracts the fields was assigned to the assessee only for development of petroleum resources. As such the exploration activities were not carried out by the assessee. Accordingly the deduction under section 42 of the Act was not specified in the production sharing contracts.

3.4 Therefore the AO was of the view that the assessee was aware from the very beginning that the deduction under section 42 of the Income Tax Act was not permissible. But despite that it claimed deduction under section 42 of the Act. Thus the AO concluded that the assessee was claiming wrong deduction by furnishing inaccurate particulars of income. The AO accordingly levied the penalty amounting to Rs. 83,00,000.00 being 100% amount of tax sought to be evaded under section 271(1)(c) of the Income Tax Act.

ITA No.2739/Ahd/2011 & 2477/Ahd/2012 A.Ys.2005-06 &2001-02 4 4. Aggrieved assessee preferred an appeal before the Ld. CIT-A. The assessee before the Ld. CIT-A submits as detailed under: 1- It claimed the deduction under section 42 of the Act since A.Y. 1996- 97 up to the A.Y. 2003-04 and the same has been allowed by the AO. 2- The provision of section 42 of the Act has specifically provided for the deduction to the person engaged in the business of prospecting/ extracting of mineral oil. Therefore the provision of section 42 of the Act will be applicable on it. 3- It made the disclosure in its notes to the return of income for the deduction under section 42 of the Act on the activities carried out by it. 4- It was in bonafide belief that it is entitled to claim deduction under section 42 of the income Tax Act. 5- It was also of the view that the article 15 of the production sharing contract allowed to claim deduction under section 42 of the Income Tax Act. 5. However the Ld. CIT-A noted that the assessee has mentioned in its notes to the return of income that they were engaged in exploration/extracting of mineral oil with the Government. Therefore it was entitled to claim the deduction under section 42 of the Act. The assessee as such has made the disclosure of all matrial facts, therefore, the ld. CIT-A deleted the addition the penalty levied under section 271(1)(c) of the Act.

Aggrieved by the order of the Ld. CIT-A, the Revenue is in appeal before us.

ITA No.2739/Ahd/2011 & 2477/Ahd/2012 A.Ys.2005-06 &2001-02 5 7. We have heard the rival contentions and perused the materials available on record. The issue in the instant case relates whether the assessee has claimed deduction under section 42 of the Act by furnishing inaccurate particulars of income.

7.1 Admittedly, the assessee had been claiming deduction under section 42 of the Act since the assessment year 1996-97 till the assessment year 2003-04 and the same was allowed. As per the assessee, it was entitled for the deduction under section 42 of the Act in pursuance to the article 15 of the agreement with the Government of India. The relevant clause of the agreement with the Government of India reads as under; TAXES ROYALTIES RENTALS CUSTOMS DUTIES ETC. 15.1 All the companies and operations under this contract shall be subject to all fiscal legislation in india except where, pursuant to any authority granted under any applicable law, they are exempt wholly or partly from the application of the provisions of a particular law or as otherwise provided herein.

7.2 However, the AO for the year under consideration has denied the deduction claimed by the assessee by observing that the deduction under section 42 will be allowed only if the deductions/allowances specifically mentioned in the agreement. The order of the AO was subsequently confirmed by the Ld. CIT (A).

7.3 Now the controversy arises whether the assessee can be visited with the penalty on account of furnishing inaccurate particulars of income. In this regard, we find that the assessee claimed the deduction under section 42 of the Act under the bona- fide belief. The bona fides believe of the assessee was based on 2 factors firstly it has been claiming the deduction for the last several years and therefore it continued to claimed the deduction for the year under consideration. Secondly, there was a clause in the agreement with the

ITA No.2739/Ahd/2011 & 2477/Ahd/2012 A.Ys.2005-06 &2001-02 6 Government of India which entitled for the impugned deduction to it as discussed above.

7.4 In our considered view there were compelling circumstances for the assessee to acquire the bonafide believe that it is entitled for the deduction under section 42 of the Act. Therefore, merely the AO did not agree with the claim of the assessee for the deduction under section 42 of the Act cannot be a ground holding that the assessee furnished inaccurate particulars of income.

7.5 We also note that in the identical facts and circumstances this tribunal in the case of Niko Resource Limited in ITA No. 2475/AHD/2008 deleted the penalty levied by the Revenue. The relevant extract of the order is reproduced as under:

“Para 7 - "Having heard both the sides, we have carefully gone through the orders of authorities below. Recently, the Hon'ble Supreme Court in the case of CIT -vs.- Reliance Petroproducts Pvt. Ltd. [2010] 322 ITR 158 (SC) held that making incorrect claim does not amount to concealment of "particulars of income". The head-notes of the said decision reads as under: - "A glance atthe provisions of section 271(1)(c) of the Income Tax Act, 1961, suggests that in order to be covered by it, there has to be concealment of the particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate particulars of his income. The meaning of the word "particulars" used in section 271(1)(c) would embrace the details of the claim made. Where no information given in the return is found to be incorrect or inaccurate, the assessee cannot be held guilty of furnishing inaccurate particulars. In order to expose the assessee to penalty, unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By no stretch of imagination can making an incorrect claim tantamount to furnishing inaccurate particulars. There can be no dispute that everything would depend upon the return filed by the assessee, because that is the only document where the assessee can furnish the particulars of his income. When such particulars are found to be inaccurate, the liability would arise. To attract penalty, the details supplied in the return must not be accurate, not exact or correct, not according to the truth or ; erroneous. Where there is no finding that any details supplied by the assessee in its return are found to be incorrect or erroneous or false there is no question of inviting the penalty under section 271(1)(c). A mere making of a claim, which is not sustainab/e in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such a claim made in the return cannot amount to furnishing inaccurate particulars. Decision of the Gujarat High Court affirmed". Para 8 - It is true that in quantum proceedings, disallowance of expenditure claimti under section 42 as well as disallowance of excess depreciation on land based drilling platform is

ITA No.2739/Ahd/2011 & 2477/Ahd/2012 A.Ys.2005-06 &2001-02 7 confirmed right upto Tribunal. In the original assessment framed by the Assessing Officer under section 1-43(3) on 26.02.2003, both the claims of the assessee were allowed. This, in our opinion, is suffice to hold that the judgment of the Hon'ble Supreme Court in the case of CIT -vs.- Reliance Petroproducts Pvt. Ltd. (supra) is squarely applicable to the facts of assessee's case. The appeal of the assessee against non-allowance of claim under section 42 of the IT. Act has been admitted by the Hon'ble Gujarat High Court under section 260A of the Income Tax Act, 1961. Whether land based drilling platform is to be treated as part and parcel of plant and machinery or not is a debatable issue. Admittedly, the case of the assessee does not fall within the mischief of main provision of section 271(1)(c) of the Income Tax Act, 1961 because mere rejection of assessee's claim would not be sufficient to hold the assesses to be guilty of concealment. The Hon'ble Gujarat High Court in the case of Sarabhai Chemical (P) Ltd. [2002] 257 ITR 355 (Guj.) held as under:-.--. "The deeming fiction that the added/ disallowed amounts represent the income in respect of v/hich particulars have been concealed contained in Explanation 1 will not apply if the explanation that was given by the assessee in the quantum proceedings which he could not substantiate in those proceedings was (i) bona fide and (ii) if he had disclosed all the facts relating to the same and material to the computation of his total income. In cases where explanation was offered, but was rejected as it could not be substantiated by the assessee, there would arise no presumption of concealment of the particulars of income that was added or disallowed and such assessee can show that the said explanation offered by him was a bona fide one and that he had disclosed all facts relating to such explanation and material to the computation of his total income during the quantum proceedings". Para 9 - In the present case, the assessee has disclosed all the material facts. It has also fuprfished the explanation, which is not only bona fide but the assessee has also substantiated the same by the fact that in original assessment, deduction under 42 as well as depreciation claim was allowed. Moreover, the appeal of assessee on disallowance claimed under section 42 of Rs.4,58,84,791/- is admitted by the Hon'ble Gujarat High Court under section 260A. In this view of the matter, in our opinion, it is not a fit case to levy the penalty under section 271 (1)(c). Therefore, penalty confirmed by the Learned Commissioner of Income Tax (Appeals) in respect of both the items of additions/ disallowances is hereby deleted."

In view of the above and after considering the facts in totality, we are of the considered opinion that the assessee cannot be held guilty for furnishing inaccurate particulars of income in the given facts and circumstances.

7.6 Accordingly, we hold that the penalty under section 271(1)(c) of the Act on account of furnishing inaccurate particulars of income cannot be imposed on the assessee. Hence we do not find any reason to interfere in the finding of the Ld. CIT-A. Thus the ground of appeal of the Revenue is dismissed.

ITA No.2739/Ahd/2011 & 2477/Ahd/2012 A.Ys.2005-06 &2001-02 8

In the result, the appeal filed by the revenue is dismissed.

In the result, the appeal of the Revenue is dismissed.

Order pronounced in the Court on 13/01/2020 at Ahmedabad.

-Sd- -Sd- (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 13/01/2020 Manish