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Income Tax Appellate Tribunal, “A” BENCH, AHMEDABAD
Before: SHRI PRAMOD KUMAR&
PER Ms. MADHUMITA ROY - JM:
The instant appeal filed by the assessee is against the order dated 16.02.2015 passed by the Commissioner of Income Tax (Appeals) – 6, Ahmedabad under section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) arising out of the order dated 25.02.2014 passed by the Dy. Commissioner of Income Tax, Circle-1, Ahmedabad for the Assessment Year 209-10 whereby and whereunder levy of penalty of Rs.3,15,180/- as imposed by the Learned AO has been confirmed.
The brief facts leading to this case is this that the assessee originally filed its return of income on 27.09.2009 declaring total income of
ITA No.664/Ahd/2015 Ascent Finechem pvt. Ltd. vs. DCIT Asst.Year –2009-10 - 2 - Rs.3,63,20,033/-. Subsequently, on 10.09.2010 a revised return was filed declaring income of Rs.3,33,62,612/- which was processed u/s 143(1) of the Act. The assessee, during the assessment year, claimed deduction amounting to Rs.10,20,000/- u/s 35(1)(IV) of the Act. During the year the assessee had purchased Gas Chromatography machine (syring IOul straight, FN 23/42/HP) for Rs.10,20,000/- from one Agilent Technologies. The copy of the invoice issued by the supplier along with the delivery memo was attached and supplied to the Learned AO in response to the direction made by the assessing officer to explain such claim. The assessee did not claim any depreciation on the asset as mentioned in section 35(IV) of the Act. Such machine was used by the assessee for analytical research which is an ongoing process to improve and develop new products in chemical business dealt in by the assessee company. The detailed printed function of that machine in the research sphere which is self explanatory was also provided to the Learned AO. According to the assessee, such type of expenditure are allowable u/s 35 being expenditure on scientific research. The Learned AO was not satisfied with the explanation so rendered by the assessee. It was his observation that the assessee in doing normal manufacturing activity. According to him, the assessee failed to demonstrate as to how scientific research is leading to extension of knowledge to the business being carried out by the assessee company. Since, according to Learned AO, no scientific research is being carried out by the assessee company, deduction u/s 35 of the Act is not allowable and therefore the same was disallowed and added to the total income of the assessee. The penalty proceeding u/s 271(1)(c) of the Act was also initiated for furnishing inaccurate particulars of income.
ITA No.664/Ahd/2015 Ascent Finechem pvt. Ltd. vs. DCIT Asst.Year –2009-10 - 3 - 3. Notice u/s 274 r.w.s. 271(1)(c) of the Act was issued on 23.12.2011 for concealment of particulars of income / furnishing inaccurate particulars of income. Meanwhile, the assessee preferred a quantum appeal which was partly allowed by the Learned CIT(A) by and under his order dated 04.06.2012. Further notice u/s 274 r.w.s. 271(1)(c) was issued on 16.12.2013 upon which following submissions were made by the assessee: “DEDUCTION UNDER SECTION 35: while computing business income assessee has claimed deduction of Rs. 10.20.000/-under section 35(1)(IV). During the year the assessee has purchased Gas, Chromatography machine (syringe 10ul straight, FN 23/42/HP) for Rs. 10.20.000/- from 'Agilent Technologies. The copy of invoice issued by the supplier along with the delivery memo is on record. The assessee has not claimed any depreciation on it as provided in section 35 (IV) of the IT Act. This machine is used by the assessee for analytical research which is a ongoing process to improve and develop new products in chemical business dealt in by the company. Also we enclose herewith detailed printed function of this machine in the research sphere which is self explanatory and such type of expenditure are allowable under section 35 being expenditure on scientific research. From above facts it will be appreciated that the assessee has purchased Gas Chromatography machine (syringe lOul straight, FN 23/42/HP) for Rs. 10.20.000/- from Agilent Technologies. This machine is used by the assessee for analytical research which is a ongoing process to improve and develop new products in chemical business dealt in by the company. The technical aspects of the machine has been mentioned in the printed literature issued by the company titled as Laboratory Equipment and the Gas Chromatography has also been discussed. The copy of the invoice and literature submitted during the course of assessment proceedings are enclosed herewith for your ready reference. As per section the assessee is entitled to claim deduction u/s 35 as long as the expenditure is of capital nature and it is used for scientific research relating to the business carried on by the assesses. As the expenditure is qf the capital nature and the same has been incurred for scientific research relating to chemical business of the assessee, there was no justification 'for disallowing the same by making general observation and without considering the technical aspects of capital
ITA No.664/Ahd/2015 Ascent Finechem pvt. Ltd. vs. DCIT Asst.Year –2009-10 - 4 - expenditure. Therefore it is respectfully submitted that the expenditure was correctly claimed u/s.35(1)(IV) against the disallowance appeal is pending before IT AT . But on the facts the question of levy of penalty does not arise because it is not a case of furnishing of inaccurate particulars of income.”
In short since the expenditure is of capital in nature and the machine is used for scientific research relating to the business carried on by the assessee, the assessee is entitled to claim deduction u/s 35 of the Act. Further that, since there is no case of furnishing of inaccurate particulars of income question of levy of penalty does not arise as also contended by the assessee during the penalty proceeding. However, such explanation made by the assessee was found acceptable by the Learned AO. He was of the opinion that the assessee has failed to demonstrate as to how scientific research is leading to extension of knowledge to the business being carried out by him. In fact, the assessee has claimed expenditure in respect of normal manufacturing activity. He thus levied penalty of Rs. 3,15,180/- against the assessee.
In appeal, the said order levying penalty has been confirmed by first appellate authority. Hence, the instant appeal before us.
At the time of hearing of the instant appeal, the Learned AR appearing for the assessee submitted before us that the machine purchased by the assessee is used for analytical research which is an ongoing process to improve and develop new products in chemical business of the assessee. The details of the function of the machinery in the research sphere which is self explanatory along with the copy of the invoice and literature issued by the supplier and the delivery memo was submitted before the Assessing Officer during assessment.
ITA No.664/Ahd/2015 Ascent Finechem pvt. Ltd. vs. DCIT Asst.Year –2009-10 - 5 - Therefore, there is no concealment of income on the part of the assessee neither any inaccurate particulars of income has been placed before the authorities for which penalty proceeding can at all be initiated. Neither it is the finding of the Learned Assessing Officer that such expenditure has not been incurred. He also relied upon the judgment passed by the Learned ITAT, Ahmedabad Bench in ITA No.1574/Ahd/2012 in the case of Areez Pirozsha Khambatta-vs-ACIT. Further that, the judgment passed in the matter of CIT- vs-Reliance Petroproducts Pvt. Ltd. reported in 322 ITR 158 (SC) has also been relied upon. He, therefore, prays for quashing of the levy of penalty made by the authorities below. Further that it was also brought to our notice that on the similar issue penalty levied by the Learned AO in A.Y. 2010-11 in assessee’s own case was deleted by the Learned CIT(A) following the decision passed by the Hon’ble Supreme Court in the case of Reliance Petroproduct Pvt. Ltd. On the other hand, Learned DR relied upon the order passed by the authorities below.
Heard the respective parties, perused the relevant materials available on record. It appears that the assessee has supplied all the related information at the time of filing of return and also Co-operated with the Learned AO during the assessment proceeding. Neither the documents or the plea taken by the assessee was found to be false by the authorities below or that the expenditure incurred by the assessee has been negated. Further that no material or evidence was brought on record pointing out by the authorities below that Revenue has discharged its onus for proving the explanation of the assessee was false. We have carefully considered the judgment passed by the Supreme Court in the
ITA No.664/Ahd/2015 Ascent Finechem pvt. Ltd. vs. DCIT Asst.Year –2009-10 - 6 - matter of CIT-vs-Reliance Petroproducts Pvt. Ltd. the relevant portion whereof is as follows: “Penalty-Concealment of particulars of income-No information given in return found to be incorrect-Making incorrect claim-Does not amount to concealment of “particulars”- Income-Tax Act, 1961, s. 271(1)(c). A glance at the provisions of section 271(1)(c) of the Income-Tax Act 1961, suggest that in order to be covered by it, there has to be concealment of the particulars of the income of the appellant. Secondly, the appellant must have furnished inaccurate particulars of his income. The meaning of the work “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 appellant cannot be held guilty of furnishing inaccurate particulars. In order to expose the appellant 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 appellant, because that is the only document where the appellant 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 appellant 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 sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the appellant. Such a claim made in the return cannot amount to furnishing inaccurate particulars. Decision of the Gujarat High Court affirmed. ”
We have also perused the order passed by the Co-ordinate Bench in ITA No.1574/Ahd/2012 for Asst. Year 2006-07 in the matter of Areez P. Khambatta vs. ACIT, as relied upon by the Ld. AR; relevant portion whereof is as follows: “4. With this brief background, we have heard both the sides. We are not in agreement with the findings of learned CIT(A) because the nature of the receipt, the amount receipt on maturity on tax free RBI bonds as
ITA No.664/Ahd/2015 Ascent Finechem pvt. Ltd. vs. DCIT Asst.Year –2009-10 - 7 - well as other related information was placed before the Revenue Department at the time of filing of the return. Therefore, it can be opined that there was no concealment about the particulars of the facts regarding the maturity of RBI bonds. On those facts being disclosed before the Revenue Department a legal question has cropped up whether the assessee was eligible for the short term capital loss or not. Although, it is true that the loss was not permissible in the eyes of law but the correct position of law could only be ascertained by the Revenue Department after examining the facts of each case. Because of this reason, we hereby hold that the case of Reliance Petro Product Pvt. Ltd., (2010) 322 ITR 158 (SC) is applicable and the penalty deserves to be deleted. We hereby direct to delete the penalty. Resultantly, ground raised is allowed.”
We find that there is no finding available in the order passed by the authorities below that the information so given by the assessee is incorrect or false. Thus, the assessee cannot be held guilty of furnishing of inaccurate particulars. Unless the case of the assessee is strictly covered by the provision of Sec. 271(1)(c) penalty cannot be levied. Even if the assessee has made an incorrect claim that does not tantamount to furnishing inaccurate particulars. In this case all the relevant detail was duly submitted by the assessee before the Revenue at the time of filing of return. Furthermore, the assessee has co- operated in its best possible manner by providing further details with explanation during the assessment proceeding which was never identified as incorrect. The judgment passed in the case of Reliance Petro Products Pvt. Ltd. dealt with the identical situation and ended with the conclusion that in the absence of any finding that the details supplied by the assessee is incorrect or false penalty cannot be levied. Respectfully relying upon the judgment we find it proper to hold that in the present facts and circumstances of the matter there is no inaccurate particulars furnished by the assessee and the provision of Sec.
ITA No.664/Ahd/2015 Ascent Finechem pvt. Ltd. vs. DCIT Asst.Year –2009-10 - 8 - 271(1)(c) is, therefore, not invocable to levy penalty against the assessee. Hence, the levy of penalty made by the authorities below is hereby deleted.
In the result, assessee’s appeal is allowed.
This Order pronounced in Open Court on 29/03/2019
Sd/- Sd/- ( PRAMOD KUMAR ) ( Ms. MADHUMITA ROY ) VICE PRESIDENT JUDICIAL MEMBER
Ahmedabad; Dated 29/03/2019 Priti Yadav, Sr.PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A). �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation 19/02/2019 (dictation pages 7) 2. Date on which the typed draft is placed before the Dictating Member 28/03/2019 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S ………………. 5. Date on which the fair order is placed before the Dictating Member for pronouncement… 6. Date on which the fair order comes back to the Sr.P.S./P.S……. 7. Date on which the file goes to the Bench Clerk………………… 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Despatch of the Order………………