GULSHAN POLYOLS LTD.,NEW DELHI vs. ACIT, CIRCLE- 10(2), NEW DELHI

The captioned appeal has been filed by the assessee against the order of the Commissioner of Income Tax (Appeals)-XXXV, New Delhi (‘CIT(A)’ in short) dated 25.05.2017 passed by the Assessing Officer under Section 271(1)(c) of the Income Tax Act, 1961 (the Act) concerning AY 2011-12. 2. The grounds of appeal raised by the assessee reads as under: “1. That the Hon’ble CIT(Appeals) is wrong and unjustified both in law and facts in imposing penalty on addition of Rs.1,44,794/- on account of Charity and Donation and Rs.65,782/- on account of disallowance of part deduction 80- IC.”

3. The assessee-company filed its return of income declaring total income at Rs.11,98,36,555/-. In the course of assessment, the Assessing Officer inter alia disallowed ‘repair and maintenance expenses’ at Rs.1,44,794/- on account of charity and donation and Rs.65,782/- on account of part deduction in Section 80IC and imposed penalty thereon which was confirmed in the first appeal. The assessee has challenged the imposition of penalty on such additions/disallowances.

4. With the assistance of the ld. counsel for the assessee, we find that the disallowance of Rs.1,44,794/- was carried out on account of charity and donation on the ground that same has not been incurred for charitable purposes. On perusal of assessment order, it is noticed that no satisfaction has been formed in the course of assessment for committing any default contemplated under Section 271(1)(c) in respect of such addition. Thus, the imposition of penalty on such addition claimed in the books of account is not justified at the first instance. The action of the CIT(A) is accordingly reversed.

5. The assessee has inter alia claimed deduction under Section 80IC on certain “other income” which inter alia included profit on sale of asset. The Assessing Officer disallowed the claim of deduction under Section 80IC terming it to be incidental income and thus cannot be said to be ‘derived from’ manufacture or produce of any article or thing. For holding so, the Assessing Officer relied upon the judgment rendered by the Hon’ble Supreme Court in the case of CIT vs. Sterling Foods, 237 ITR 579 (SC) wherein the Court observed that the industrial undertaking itself had to be the source of profit and the business of industrial undertaking had to directly yield that profit. The action of the Assessing Officer is clearly governed by the interpretation rendered by the Hon’ble Supreme Court on expression ‘derived from’ and is based on the stance that while the income so reflected in the books may be attributable to the business undertaking but cannot be equated with the expression ‘derived from’ the manufacturing activity. Thus, the deduction reduced on account of interpretative process cannot per se be equated with furnishing of inaccurate particulars of income. In the absence of any culpability, the imposition of penalty owing to denial of deduction on such interpretation on nicety of law does not warrant imposition of onerous penalty under Section 271(1)(c). The penalty imposed is thus cancelled.