COMMISSIONER OF INCOME TAX vs. SUSHIL GUPTA

order under Section 271(1)(c) on the ground that there is no deliberate concealment is justified in the light of the decision of the Hon'ble Apex Court in Dharmendra Textile Processor and .-~:J 0 () :r: C)- :r: <C 2<>~ <C J: C 2. <C QJ«.,z::J a. ~..Jt>- others, ITR 277 (SC), whereas the assessee had offered an explanation which could not be substantiated in the light of the Apex Court judgment referred in question No.(i) and ought to have been taken as deemed concealment within Explanation - 1(8) of Section 271 (1)(c) of the Income Tax Act, 1961?" The facts, in brief, necessary for adjudication, as narrated in the appeal, are that the return of income for the assessment year in question furnished by the respondent-assessee at an income of Rs. 18,7601- was processed under Section 143(1)(a) of the Act. It was detected that since the turnover of the assessee for the financial year 1:999-2000, relevant to the assessment year in question was more !i titian 10 crores, no deduction under Section 80HHC was allowable to it o~ profit on transfer of the Duty Entitlement Pass Book (DEPB) and t~e same having been wrongly allowed, notice under Section 148 was I ' , iJsued to the assessee. Consequently, the matter was decided under III . ~ection 143(3) of the Act on 30.10.2006 whereby deduction under II! Section 80-IB of Rs. 61, 26,445/- out of Rs. 1,10,07,743/- on total I j business profit of Rs. 5,50,57,472/- was disallowed. The assessing officer, in particular, held that the assessee had furnished inaccurate particulars of its income in form of claiming unallowable deduction under Section 80-IB on expqrt incentives. Besides, the assessing officer also initiated proceedings against the assessee for imposition of penalty under Section 271(1)(c) of the Act and, thus, issued the requisite notice. In the appeal carried by the assessee, the Commissioner of Income-tax (Appeals) {in short "the CIT(A)"}, <Hi'

j ... f-i a:: , ::J Q' 0 J: C)-J:«z< ~«J: cz <C aJ« ...,z::;) a. ~>.:!\>- -- observed in clear terms that on the issue of deduction under Section 80-IB, in the instant case two views were possible and the same were supported by judicial pronouncements. The CIT(A) further observed that in the scenario of the present case it could not be said with a definite view that the assessee had furnished any inaccurate particulars or had concealed any material. The CIT(A) consequently, deleted the penalty imposed under Section 271 (1)(c) of the Act vide order dated 20.8.2009. The Revenue feeling aggrieved~ approached the Tribunal ~ c?rrying appeal against the order of the CIT(A). The Tribunal put its s~al of affirmation on the order of the lower appellate authority and , i dismissed"the Revenue's appeal by order dated 17.3.2011 and it is II hfW the Revenue is once again in appeal before us under Section 2~OA of the Act. I

We have heard learned counsel for the parties and have p~rused the record. II! The only point for consideration by this Court is, whether in i t~e facts and circumstances, the penalty imposed under Section 2t1(1)(c) of the Act on the amount which was wrongly claimed as deduction under SeCtion 80-18 on account of export incentive, had held as under:

~ ¥"YT~ ; 'tt .. ~h~ofueTax Appeal No. 793 of 2010 5 "