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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM
PER SHRI KUL BHARAT, J.M.
These two cross appeals by the assessee and the revenue are directed
against the order of ld. CIT (A)-III, Jaipur dated 19.08.2016 pertaining to A.Y.
2008-09. First, we take up the revenue’s appeal in ITA No. 948/JP/2016. The
revenue has raised the following grounds of appeal :-
1) On the facts and in the circumstances of the case and in law, the CIT (A) has erred in deleting penalty u/s 271(1)(c) on disallowance of commission & brokerage and service tax of Rs. 4,14,72,012/- and legal & Profession and consultancy charge to M/s. Vidarbha Electrical Nagpur amounting to Rs. 35 lac on the ground that these additions have been deleted by the ITAT vide its order dated 20.05.2016 in ITA No. 38/JP/2012 but the Department has not accepted the decision of the ITAT and appeal before Hon’ble Rajasthan High Court has been filed on these issues.
2) The appellant craves leave to add, alter, amend, withdraw or insert any ground or grounds of appeal before or at the time of hearing of the appeal.
At the outset, ld.Counsel for the assessee pointed out that the Hon’ble
ITAT while dealing with the above grounds in quantum appeal in assessee’s
own case, after discussing the matter at great length, has allowed the claim of
the assessee by deleting the addition.This fact is not controverted by the ld.
D/R. We find that the revenue’s ground for filing the appeal is that the
3 ITA Nos. 942 & 948/JP/2016. M/s. Genus Power Infrastructures Ltd.
revenue has not accepted the decision of the ITAT rendered in the quantum
proceedings in ITA No. 38/JP/2012.
We have heard rival contentions and perused the material available on
record. The revenue has not placed any material suggesting that the order
passed in quantum appeal was stayed or rejected by the Hon’ble Jurisdictional
High Court. As the addition has been deleted by the Tribunal in quantum
proceedings, in our considered view, penalty does not survive. Therefore, we
do not see any reason to interfere into the order of ld. CIT (A), the same is
hereby upheld.
Now, we take up assessee’s appeal. The assessee has raised the
following grounds of appeal :-
On the facts and circumstances of the case and in law, ld. Commissioner of Income Tax (Appeals) has grossly erred in confirming penalty u/s 271(1)(c) on a sum of Rs. 196,750/- paid as donation and claimed as deduction u/s 80G of the IT Act, 1961, which was disallowed solely due to non-furnishing of documents, though the same was paid through payee’s a/c cheque and thus the same deserves to be deleted.
1.1 That, ld. CIT (A) further erred in not appreciating the legal position that mere rejection of deduction claimed does not ipso facto results in concealment or furnishing of inaccurate particulars, particularly when it was not disputed that payment was made by cheque, thus, the penalty so confirmed deserves to be deleted.
1.2 That ld. CIT (A) erred in confirming the penalty without appreciating the fact that no satisfaction was recorded by Assessing Officer before levying penalty and it was levied merely
4 ITA Nos. 942 & 948/JP/2016. M/s. Genus Power Infrastructures Ltd.
for want of donation receipts, thus levy of penalty is not justified and deserves to be deleted.
That the appellant craves the right to add, delete, amend or abandon any of the grounds of appeal either before or at the time of hearing of appeal.
The only effective ground is against sustaining the penalty of Rs.1,96,750/-
made in respect of confirmation of disallowance of deduction/s 80G of the
Income Tax Act, 1961.
The ld. Counsel for the assessee reiterated the submissions as made in
the written brief and submitted that the authorities below were not justified in
imposing penalty and confirming the same. He submitted that the payment
was made through banking channel. It is sufficient to demonstrate that it was
not a bogus payment. The ld. Counsel has placed reliance on the decision of
the Hon’ble Supreme Court rendered in the case of CIT vs. Reliance
Petroproducts Pvt. Ltd. 36 DTR 449 (SC).
On the contrary, the ld. D/R opposed the submissions. He submitted
that the assessee did not furnish any evidence suggesting that payment made
to the Institution was entitled for acceptance of donation. Under these facts,
the authorities below were justified in levying the penalty.
We have heard rival contentions, perused the material available on
record and gone through the orders of the authorities below. There is no
dispute with regard to the fact that the payment has been made through
5 ITA Nos. 942 & 948/JP/2016. M/s. Genus Power Infrastructures Ltd. banking channel. However, there is no material suggesting that the payment
was made to the institution which was registered under section 80G of the
I.T. Act. In the absence of this vital material evidence, the explanation of the
assessee is devoid of any merit. The ground raised in the appeal is dismissed.
In the result, both the appeals of the assessee and revenue are
dismissed.
Order pronounced in the open court on 22/02/2017.
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