CIT KARNAL vs. SUSHIL GUPTA

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. ITA No. 414 of 2010 Date of decision: 28.10.2010 The Commissioner of Income Tax, Karnal -----Appellant Vs. Shri Sushil Gupta ----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Yogesh Putney, Senior Standing Counsel for the revenue. Adarsh Kumar Goel,J. This appeal has been preferred by the revenue under section 260A of the Income Tax Act, 1961 (for short, ‘the Act’) against order of the Income Tax Appellate Tribunal, Delhi Bench ‘G’ New Delhi dated 9.10.2009 in ITA No.57/Del/20-09, proposing to raise following substantial questions of law:- “i) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in deleting the penalty imposed under section 271(1) ( c) on the amount of deduction claimed under section 80IB on export incentives by holding that there was no deliberate furnishing of inaccurate particulars by the assessee, given the fact that the decision of the Hon’ble Supreme Court in Sterling Foods v. CIT dated 15.4.1999 (237 ITR 579) disallowing claim of deduction under Chapter VIA of the Act on export incentives was already available to the assessee at the time of filing the return of income for Assessment year 2002-03, and therefore, the assessee was evidently filing inaccurate particulars of income in claiming 80IB on export incentives? ii) Whether the decision of the Income Tax Appellate Tribunal to delete the penalty under section 271(1) (c) of the Act is justified in the light of the decision of the Hon’ble Supreme Court in Liberty India v. CIT (317 ITR 218) whereby the non-allowability of 80IB deduction on export incentives has been re-affirmed? iii) Whether the decision of the Income Tax Appellate Tribunal quashing the penalty 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 Processors & Others, 306 ITR 277 (SC) which has held that mens rea is not an essential ingredient for levy of penalty 271(1)( c) of the Act and that levy of such penalty is mandatory as remedy for loss to revenue, and given the fact that such loss to revenue has occurred in the instant case due to wrong claim by the assessee with reference to deduction under section 80IB?

It is not disputed that identical appeal filed by the revenue has been dismissed by this Court vide order dated 28.7.2010 in The CIT v. M/s Raj Overseas, ITA No.225 of 2010.. Accordingly, this appeal is dismissed. (Adarsh Kumar Goel) Judge October 28, 2010

(Ajay Kumar Mittal) ‘gs’ Judge 2