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Income Tax Appellate Tribunal, AHMEDABAD “B” BENCH
Before: Ms. Annapurna Gupta & Shri T.R. Senthil Kumar
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “B” BENCH Before: Ms. Annapurna Gupta, Accountant Member And Shri T.R. Senthil Kumar, Judicial Member
ITA Nos: 1860 to 1863/Ahd/2019 Assessment Years: 2003-04 to 2006-07
Gujarat Power The ACIT, Corporation Ltd. Gandhinagar Circle, 7th Floor, Regency Vs Gandhinagar Plaza, Opp. Rahul (Respondent) Tower, Nr. Madhur Hall, Anandnagar Cross Road, Satellite, Ahmedabad-380015 PAN: AAACG5596J (Appellant) Appellant by : Shri S.N. Soparkar, Sr. Adv. & Ms. Urvashi Sodhan, A.R. Respondent by : Shri Vidhyut Trivedi, Sr.D.R. Date of hearing : 01-09-2022 Date of pronouncement : 28-09-2022 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:-
These four appeals are filed by the Assessee as against separate orders dated 26.09.2019 passed by the Commissioner of Income Tax (Appeals)-7, Ahmedabad, confirming the penalty levied u/s. 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) relating to the Assessment Years (A.Ys) 2003-04 to
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2006-07. As common issues are involved in the above appeals the same are disposed of by this common order. The facts relating to the assessment year 2003-04 in ITA No. 1860/Ahd/2019 is taken as the lead case.
The brief facts of the case is that the assessee is a Public Sector Undertaking engaged in the business of power generation in the state of Gujarat. During the assessment proceedings, the assessee claimed deduction of Rs. 35,37,800/- u/s 35E of the Act. A perusal of the audited profit and loss account disclosed various items of income namely Lease Rent, Lease Management Fee, Lease Finance Income, etc. but the none of the income was proved by the assessee was earned from the business of prospecting for or extraction/production of mineral eligible to claim deduction u/s. 35E of the Act. Thereafter the assessee was asked to furnish necessary evidences to substantiate its claim namely whether the assessee was engaged in operations relating to prospecting for or extraction or production of mineral, details of expenses incurred date/month and year wise of commercial production, etc.
2.1. The assessee replied that u/s 10 of the Mines and Minerals (Regulation and Development) Act, 1957, Government of Gujarat has sanctioned grant to the assessee of mining lease for “lignite” for 30 years in Bhavnagar District. There is also a report from Gujarat Electricity Board (GEB) and Mining Department, Government of Gujarat evidencing that the assessee engaged in the prospecting activities for the minerals. Thus the assessee contended citing the meaning “operating relating to prospecting” u/s. 35E (5) of the Act
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that commercial production is not necessary to claim the deduction under the said section. The assessee’s alternative claim is that if the 1/10th deduction u/s. 35E Rs. 35,37,800/- is not allowed then the entire expenditure of Rs. 7,78,31,600/- is allowable u/s. 37 of the Act. The above contention was not accepted by the Assessing Officer and the same is added as the income of the assessee.
2.2. The next issue is, the assessee entered into leasing transaction with Gujarat Electricity Board (GEB), which sold to the assessee LP Rotor Machine for an amount of Rs. 8 crores vide invoice dated 30.09.2002. The assessee company in turn leased this LP Rotor Machine back to the GEB and claimed depreciation on the above machinery. Originally GEB purchased this machinery from Bharat Heavy Electricals Ltd. for a consideration of Rs. 14,21,13,920/- vide invoice dated 25.03.2002. Subsequently by way of invoice cum delivery challan, it was claimed to be sold to the assessee company on 30.09.2002. On the very same day, this machinery is leased back to GEB by Lease Agreement dated 30.09.2002. Thus the assessing officer held that there was no change of possession and ownership from GEB to the assessee by pith and substance. The lease transaction was a colourable device and the assessee is not entitled for the claim of depreciation on the leased machinery. Therefore the assessee’s claim of depreciation of Rs. 2 crores was not allowable u/s. 32 of the Act and added back to its total income. Thus the assessing officer initiated penalty proceedings u/s. 271(1)(c) both on the claim of deduction u/s. 35E as well as claim of depreciation on the leased back machineries.
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2.3. The assessee challenged the assessment before the Ld. CIT(A) and was unsuccessful. Further the appeal before the Tribunal was also unsuccessful and presently the assessee’s appeal on the quantum are pending before the Hon’ble High Court of Gujarat. In the meanwhile the assessing officer levied penalty for furnishing inaccurate particulars of income u/s. 271(1)(c) of the Act as follows: Penalty u/s. 2003-04 2004-05 2005-06 2006-07 271(1)(c) levied on 1. Deduction u/s. 13,00,142/- 24,19,109/- 28,48,053/- 26,19,812/- 35E of the Act 2. Depreciation on 36,23,598/- 46,82,342/- -- 17,04,037/- Sale and Leased Assets.
Aggrieved against the penalty orders, the assesse filed appeals before the Ld. CIT(A). The Ld. CIT(A) held that the disallowance of deduction u/s. 35E made by the Assessing Officer is upheld by the Hon’ble ITAT in assessee’s own case. Though the assessee claimed that there was no deliberate intention to avoid taxes and made addition or confirmation of addition would not attract penalty. The Ld. CIT(A) rejected the above plea and relied upon ITAT’s order more particularly Para 6.1.0 wherein it was held by the Tribunal that the assessee has not put forth and iota of evidence to substantiate that there was commercial production in the year under consideration and these facts are even not rebutted by the assessee in penalty proceedings. Therefore the assessee has made false claim of deduction u/s. 35E of the Act.
3.1. Following Hon’ble Supreme Court judgment in the case of Sundaram Finance Ltd. reported in (2018) 99 taxmann.com 152 wherein SLP dismissed against the Madras High Court Ruling that
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the assessee claimed depreciation on non-existing assets, penalty u/s. 271(1)(c) was to be levied for filing inaccurate particulars of income. The Ld. CIT(A) further relied upon Hon’ble Supreme Court judgment in the case of Jivanlal and Sons reported in (2019) 103 taxmann.com 208 and thereby confirmed the levy of penalty u/s. 271(1)(c) of the Act.
3.2. On the claim of depreciation on sale and leased back assets, the Ld. CIT(A) held that the whole arrangement was put through with the motive of infusing funds of Rs. 8 crores to GEB and there was no intention to purchase the asset and leased them back. Thus there was no physical delivery of asset nor identification of asset. The usage and user of asset remained the same at the same place prior to so called sale and after the so called lease back transaction. The Hon’ble ITAT also held that neither ownership nor usage could be substantiate by the assessee and thereby rejected the claim of depreciation on sale of lease back of assets. Further following Hon’ble Madras High Court judgment in the case of Magna Credit & Financial Services Ltd. vs. DCIT [2018] 98 taxmann.com 392, wherein the Hon’ble High Court held that the documents produced by the assessee did not substantiate its claim of 100% depreciation on assets in any justifiable manner, the Assessing Officer after examining the sale and lease back transaction, held that it was apparent that it was not in nature of a normal transaction, the assessee hurriedly planned act towards end of financial year to claim 100% depreciation benefit. Thus the assessee claimed false depreciation and concealed its income. Therefore imposition of penalty u/s. 271(1)(c) was upheld.
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Following the above ratio of the judgment, the Ld. CIT(A) confirmed the levy of penalty on the claim of depreciation on the sale and leased back assets.
Aggrieved against the additions, the assesse is in appeal before us raising the detailed grounds.
4.1. Ld. Senior counsel Shri S.N. Soparkar appearing for the assesse submitted that both the Lower Authorities erred in confirming the levy of penalty u/s. 271(1)(c) without considering the entire facts of the case. Ld. Senior Counsel further filed Paper Books for each assessment year and submitted that the assessee is 100% State Government Undertaking and there is no deliberate intention to avoid tax. There was no conscious efforts to conceal and furnish inaccurate particulars of income. In the absence of any malafideness, no penalty can be levied u/s. 271(1)(c). The assessee has not furnished any inaccurate particulars of income either in the Return of Income or during the appellate proceedings and deductions claimed u/s. 35E and depreciation u/s. 32 are claimed are also well in accordance with law. The disallowance are made on account of difference of opinion in interpreting the provisions of law. Thus there is no concealment of income. Penalty u/s. 271(1)(c) can be levied only, if the assessee has furnished inaccurate particular of the income or in concealment of income.
4.2. The expression “furnished inaccurate particulars of income” has not been defined in the Act, making an incorrect claim in law cannot tantamount to furnishing inaccurate particulars. In order to
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levy penalty for furnishing inaccurate particulars of income, the assessee must be found to have failed to prove that his explanation not only bonafide, but all the facts relating to the same and material to the computation of its income were not disclosed by it and relied upon the Hon’ble Supreme Court judgment in the case of CIT vs. Reliance Petroproducts Pvt. Ltd. [2010] 189 taxmann.com 322, the Jurisdictional High Court judgment in the case of CIT vs. Gujarat Gas Co. Ltd. [2009] 308 ITR 243 and the Hon’ble Madras High Court in the case of CIT vs. Cholamandalam Investment & Finance Co. Ltd. [2014] 40 taxmann.com 569. Thus the Ld. Senior Counsel pleaded that the levy of penalty u/s. 271(1)(c) is not justifiable and the same liable to be deleted. Ld. Senior Counsel further submitted that the quantum appeals for the assessment years 2003-04 to 2006-07 travelled to the Hon’ble High Court of Gujarat both by the Assessee and Revenue and by order dated 13.08.2013, the Hon’ble Jurisdictional High Court remanded the matter back to the ITAT to consider the disallowance u/s. 35E/37(1) and depreciation on sale and leased back and exclusion of principal sum of lease rent. Pursuant to the direction of the Hon’ble High Court, the Co-ordinate Bench by order dated 31.07.2019 passed a detailed order confirming the disallowances made by the Assessing Officer, however the same are again subject matter of appeal filed before the Jurisdictional High Court and pending for consideration. Thus the Ld. Senior Counsel pleaded that the claim made by the assessee and the disallowances made by the Assessing Officer are highly debatable in nature, therefore that cannot be a subject matter of levying penalty u/s. 271(1)(c) of the Act.
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Per contra the Ld. D.R. Shri Vidhyut Trivedi appearing for the Revenue supported the orders of the Lower Authority and submitted when the quantum appeals are dismissed by the Co- ordinate Bench of this Tribunal by confirming the disallowances and additions made by the Assessing Officer. Thereafter only penalty is levied and thus the same amounts to furnishing inaccurate particulars of income and therefore pleaded to uphold the penalty levied by the lower authorities.
Heard rival parties and we have given our thoughtful consideration and perused the materials available on record including Paper Books and case laws filed by the assessee. It is seen from record that the assessee was granted mining lease for “lignite” for a period of 30 years in Bhavnagar District. There is also report from Gujarat Electricity Board and Mining Department, Government of Gujarat evidencing that the assessee is engaged in the prospecting activities for the minerals during the assessment year 2003-04. The assessee incurred necessary expenditures for this preliminary activities for the mining works and claimed u/s. 35E of the Act. However the assessee could not start commercial production within 5 years. The Co-ordinate Bench of this Tribunal has confirmed the disallowance u/s. 35E only on the ground that the assessee does not meet the parameters of eligibility prescribed within section 35E of the Act and the assessee also failed to commence the commercial production during the assessment year 2003-04.
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The Lower Authorities failed to appreciate that the assessee has obtained mining rights from Government of Gujarat and the assessee also signed a letter of intent with Reliance Industries Ltd. for Development and sale of net electrical output generated to GEB. Thus it cannot be construed that inaccurate particulars have been furnished by the assessee to make a wrong claim u/s. 35E of the Act, thus does not warrant levy of penalty u/s. 271(1)(c) of the Act. It is undisputed fact that the lese of sale and leased back of LP Rotor Machines to GEB by the Assessing Officer but denied the benefit on the ground that no change of possession was taken place. The Lower Authorities failed to consider that leasing activity is one of the objects of the assesse company and lease rent received has been treated as its “business income” and assessed to taxes. Consequently the assessee is entitled to claim depreciation on the leased machineries. The sale and leased back transaction entered into by the assessee with GEB which is nothing but an extension of financial assistance to GEB between two Public Sector Undertakings.
In order to invoke the penalty proceedings under section 271(1)(c) of the Act, the Revenue should prove that the claim made was not sustainable in law and also the assessee had made a concealment of the particular income. In order to expose the assessee to penalty, the Revenue should show that there was contumacious conduct on the part of the assessee in suppressing the income in the return. The rejection of such a claim by the Appellate Tribunal does not amount to furnishing inaccurate particulars of income, thereby levying penalty u/s. 271(1)(c) of the
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Act as held by the Hon’ble Supreme Court in the case of Reliance Petroproducts (P.) Pvt. (cited supra) held as follows: A glance of provision of section 271(1) (c) would suggest that in order to be covered, 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 instant case was not the case of concealment of the income. That was not the case of the revenue either. It was an admitted position in the instant case that no information given in the return was found to be incorrect or inaccurate. It was not as if any statement made or any detail supplied was found to be factually incorrect. Hence, at least, prima facie, the assessee could not be held guilty of furnishing inaccurate particulars. The revenue argued that submitting an incorrect claim in law for the expenditure on interest would amount to giving inaccurate particulars of such income. Such cannot be the interpretation of the concerned words. The words are plain and simple. In order to expose the assessee to the penalty unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By any stretch of imagination, making an incorrect claim in law cannot tantamount to furnishing of inaccurate particulars. [Para 7] Therefore, it must be shown that the conditions under section 271(l)(c) exist before the penalty is imposed. There can be no dispute that everything would depend upon the return filed, 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. [Para 8] The word 'particulars' must mean the details supplied in the return, which are not accurate, not exact or correct, not according to truth or erroneous. In the instant case, there was no finding that any details supplied by the assessee in its return were found to be incorrect or erroneous or false. Such not being the case, there would be no question of inviting the penalty under section 271(l)(c). A mere making of the claim, which is not sustainable in law by itself will not amount to furnishing of inaccurate particulars regarding the income of the assessee. Such claim made in the return cannot amount to the inaccurate particulars. [Para 9] The revenue contended that since the assessee had claimed excessive deductions knowing that they were incorrect, it amounted to concealment of income. It was argued that the falsehood in
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accounts can take either of the two forms: (i) an item of receipt may be suppressed fraudulently; (ii) an item of expenditure may be falsely (or in an exaggerated amount) claimed, and both types attempt to reduce the taxable income and, therefore, both types amount to concealment of particulars of one's income as well as furnishing of inaccurate particulars of income. Such contention could not be accepted as the assessee had furnished all the details of its expenditure as well as income in its return, which details, in themselves, were not found to be inaccurate nor could be viewed as the concealment of income on its part. It was up to the authorities to accept its claim in the return or not. Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the revenue, that, by itself, would not attract the penalty under section 271(l)(c). If the contention of the revenue was accepted, then in case of every return where the claim made was not accepted by the Assessing Officer for any reason, the assessee would invite penalty under section 271(l)(c). That is clearly not the intendment of the Legislature. [Para 10] Therefore, the appeal filed by the revenue had no merits and was to be dismissed.
Further on an identical issue the Jurisdictional High Court in the case of Gujarat Gas Co. Ltd. (cited supra) held that lease rent received by the assessee on lease of electrical equipment was taxed as business income, therefore the assessee was entitled to depreciation on leased equipment as follows: The assessee had entered into lease agreement with the Rajasthan State Electricity Board engaged in generation and distribution of electricity. The assessee had got the electrical equipment and leased out the same on rent to the Rajasthan State Electricity Board. The assessee had shown the lease rent received as its income and also the machinery purchased during the year in the audited balance sheet. The assessee's claim for depreciation on the lease equipment was not allowed on ground that the transaction of lease was not genuine and. hence, the assessee was not entitled to depreciation. The Tribunal however, held that the assessee was entitled to depreciation on the lease rental. Held that the lease rental paid by the Rajasthan State Electricity Board had been found by the Rajasthan High Court to be allowable
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deduction as the transaction was genuine. Correspondingly, in the hands of the assessee-company, the said lease rental had been taxed as business income and the same had not been disturbed by the Assessing Officer despite having initiated action under section 147 for treating the transaction as a non-genuine transaction. Whether the transaction of leasing out electrical equipments to the Rajasthan Electricity Board was genuine or not, was based on appreciation of evidence on record as found by the Tribunal by referring to the various documents like invoice, etc. In the absence of any evidence to show anything to the contrary no legal infirmity existed in the impugned order of the Tribunal so as to give rise to any question of law, much less a substantial question of law.
The Hon’ble Madras High Court in the case of CIT vs. Cholamandalam Investment & Finance Co. Ltd. (cited supra) held that where the A.O. failed to give independent finding that there was a deliberate design on the part of the assessee to inflate cost of acquisition so as to claim higher depreciation, penalty could not be imposed and held as follows. 8. In order to invoke the penalty proceedings under section 271(1)(c) of the Act, the Revenue should prove that the claim made was not sustainable in law and if the assessee had made a concealment of the particular income.The Hon’ble Supreme Court in the case of CIT vs. Reliance Petroproducts (P.). Ltd. [2010] 322 ITR 158/189 Taxmann 322 pointed out that in order to expose the assessee to penalty, the Revenue should show that there was contumacious conduct on the part of the assessee in suppressing the income in the return. Further, it was pointed out that in order to expose the assessee to penalty, unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By referring to the decisions in the case of Dilip N. Shroff v. Jt. CIT [2007] 291 JTR 519/161. Taxman 218 (SC). and in the case of Union of India vs. Dharamendra Textile Processors [2008] 306. 1TR. 277/174 Taxman 57 (SC). the hon'ble Supreme Court pointed out that the explanation must be preceded by a finding as to how and in what manner the assessee had furnished the particulars of his income and to impose penalty, element of metis rea was essential. Explaining the term "conceal" and "inaccurate", the said decision overruled the decision in the case of Dilip .V. Shroff (supra), as regards the mens rea to be an essential ingredient in the levy of penalty. The hon'ble Supreme
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Court held, the words "inaccurate particulars" mean "not accurate", "not exact or correct", "not according to truth" and "erroneous", that the mere making of a claim, which is not sustainable in law, by itself, would not amount to furnishing inaccurate particulars regarding the income of the assessee and that such a claim made in the return cannot amount to furnishing inaccurate particulars. Further, the hon'ble Supreme Court held as follows (page 166 of 322 1TR) : "Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the Revenue, that by itself would not, in our opinion, attract the penalty under section 271(l)(c). If we accept the contention of the Revenue then in case of every return where the claim made is not accepted by the Assessing Officer for any reason, the assessee will invite penalty under section 271(1)(c). That is clearly not the intendment of the Legislature." 9. …………….. 10. The facts of the case as narrated in the preceding paragraphs would clearly disclose that the contention raised by the assessee was not held to be not according to truth or an inaccurate particulars furnished or with a view to conceal the actual income. In fact, the Assessing Officer in the penalty order dated April 26, 2000, has not given any independent finding in support of his conclusion that there was a deliberate design on the part of the assessee to inflate the cost of acquisition. 11. As pointed out by the first appellate authority all the details of the transactions were placed before the Assessing Officer and an explanation was given as to why the market value of the property need not be equivalent to the written down value. The Assessing Officer while completing the assessment proceedings, chose to adopt the written down value. Therefore, that by itself would not amount to furnishing inaccurate particulars or with a view to conceal the actual income. Therefore, the order passed by the Tribunal calls for no interference. Accordingly, the Tax Case (Appeal) fails and it is dismissed. No costs.
It is also to be noted the Hon’ble Supreme Court judgment in the case of Sundaram Finance (cited supra) relied by the Ld. CIT(A), wherein the lease transaction is not a genuine one and there was
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no machineries existing in that lease transaction. Therefore on the above facts and circumstances of the case, the Hon’ble High Court confirmed the levy of penalty u/s. 271(1)(c) which is being approved by the Hon’ble Supreme Court. But in the present facts of the assessee, the A.O. does not dispute about the leased machineries but say that no physical transfer taken place. Thus the above Supreme Court judgment in Sundaram Finance case will not be applicable to the facts of the present assessee’s case. Similarly the Ld. CIT(A) relied upon the judgment of the Hon’ble Supreme Court in the case of Jivanlal and Sons (cited supra) wherein the assessee made the claim of deduction based on the advice of Chartered Accountant without any evidences. But in the present case of the assessee, there were license from Govt., of Gujarat for mining activities and various other correspondences and agreement entered by the assessee are very much available. Similarly, in the case of sale and leased back invoices, agreements are very much available being a financial transaction, therefore the Jivanlal and Sons case laws relied by the Ld. CIT(A) is clearly distinguishable to the present facts of the case.
It is appropriate to rely upon the Hon’ble Delhi High Court judgment in the case of PCIT, Central-11, vs. Harsh International Pvt. Ltd. reported in [2021] 128 taxmann.com 88. The Judicial discipline demand that until and unless the judgment of the Hon’ble Jurisdictional High Court is reversed. It has to be respected and followed by the Tribunal functioning the jurisdiction of that court held as follows:
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“Whether penalty can be levied in cases where concealment of income has not been proven – whether since High Court had framed substantial question of law in appeal preferred by assessee challenging quantum order itself, alleged concealment was not final and issue was debatable and therefore impugned penalty could not survive in such cases.”
For the above reasons, penalty levied u/s. 271(1)(c) for furnishing inaccurate particulars of income is hereby deleted.
In the result, appeals filed by the Assessee are hereby allowed.
Order pronounced in the open court on 28-09-2022
Sd/- Sd/- (ANNAPURNA GUPTA) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER True Copy JUDICIAL MEMBER Ahmedabad : Dated 28/09/2022 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद