ADVANCE POWER DISPLAY SYSTEMS LTD,MUMBAI vs. DCIT 8(1), MUMBAI
In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.
What did the Tribunal hold?
The Tribunal deleted the penalty for AY 1997-98 as the underlying addition was deleted. For AY 2003-04, the Tribunal held that penalty cannot be levied when a bonafide claim is made and all facts are disclosed, even if part of the expenditure is disallowed.
What were the facts?
The assessee appealed against penalty orders under Section 271(1)(c) for two assessment years. For AY 1997-98, the penalty was based on an addition that was later deleted by the Tribunal. For AY 2003-04, the penalty was for partly disallowing foreign travel expenses.
What were the issues?
Whether penalty under Section 271(1)(c) is leviable when the addition forming the basis of the penalty is deleted, and whether penalty is justified for disallowance of foreign travel expenses when the claim is bonafide and supported by disclosures.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cases cited in this judgment(2)Show listHide list
Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.
- Shell Oil Storage Co. Ltd., 163 ITR, 496 (Cal.) 2. CIT v. Late G.D. Naidu & Others17 citing124 ITR 15 · 1980 · SC
- ITO v. RBGM Modi and Others Ltd. (13 citing46 ITD 331 · 1993 · ITAT
Income Tax Appellate Tribunal, “A ”, BENCH MUMBAI
Before: SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH, JM
आदेश / O R D E R PER R.C.SHARMA (A.M):
These are the appeals filed by assessee against the order of CIT(A)-16, Mumbai dated 14/08/2015 for A.Y.1997-98 and 2003-04, in the matter of imposition of penalty u/s.271(1)(c) of the IT Act.
At the outset, learned AR placed on record, the quantum order of the Tribunal for the A.Y.1997-98 wherein addition on the basis of which penalty so imposed had been deleted by the Tribunal itself vide order dated 25/08/2016.
We have gone through the orders of the authorities below as well as the order of the Tribunal dated 25/08/2016, wherein the addition of 5169/Mum/2015 M/s. Advance Power Display Systems Ltd., Rs.33,25,027/- so upheld by the CIT(A) was deleted by the Tribunal after observing as under:- 7. So far as the remaining material of Rs.33,25,027/- is concerned, the plea of the assessee is that the worth value of the material at the time of use was not that of invoice value. The material at the time of use had reduced to the scrap value which was used by the assessee for its manufacturing activity and the value of the material used was taken at 'zero' cost. The profits from the corresponding sales have already been offered for taxation by the assessee. Under such circumstances, in our view, the Ld. CIT(A) was not justified in confirming the additions of Rs.33.25,027/- at original bill value. Since the assessee has offered the profits from the sales of the goods and the raw material used has been taken at 'zero' value, hence, in our view, the value of the material has already been taxed and adding the bill value of the goods at Rs.33,25,027/- would amount not only to the excess addition but also to the double addition. We, therefore, direct the AO to verify whether the raw material worth Rs.33,25,027/- (as per their original bill value) was used in the manufacturing activity at 'zero' cost and if the corresponding profit from the sale of goods manufactured from the use of the said raw material has been offered for taxation, then no additions be made in respect of the said value of Rs.33,25,027/-. The action of the Ld. CIT(A) in deleting the remaining additions is upheld.
As the addition itself on which penalty has been imposed u/s.271(1)(c) vide order dated 28/03/2013, the penalty so levied has no legs to stand.
In view of the above discussion, we delete the penalty so imposed u/s.271(1)(c) with respect to addition of Rs.33,25,027/-. 6. In the assessment year 2003-04, penalty was levied for partly disallowing foreign travelling expenses alleged to be incurred on account of personal enjoyment. 7. It was argued by learned AR that similar travelling expenses were incurred in earlier and subsequent assessment years, however, no disallowance was made in those years. It was contended that assessee 5169/Mum/2015 M/s. Advance Power Display Systems Ltd., being in the business of manufacturing and export of power supplies used to visit foreign countries for making purchases from the customers abroad and the expenditure so incurred on travelling was only for the purpose of business. Accordingly, it was prayed that mere disallowance of part of the expenditure will not entitle the AO to levy penalty for concealment of income. 8. On the other hand, learned DR relied on the order of the lower authorities. 9. We have considered rival contentions and carefully gone through the orders of the authorities below. From the record, we found that the assessee manufactures different models of SMPS and each product of the assessee is designed and manufactured as per customer specifications and every design is unique for a particular customer. All the customers of the assessee are located outside India and none of the sales of the assessee are generated in India. The assessee however does not supply the products directly to end customers. The products manufactured by the assessee are supplied to Quality Component Systems Pvt. Ltd., Singapore (QCS). QCS generates orders for SMPS from the final customers and then gets such products manufactured from the assessee as per orders and specifications of the customers. 10. From the record we found that during the year under consideration, the total turnover of the assessee involved manufacturing of more than 23 models of different complexity and sales quantity. The assessee had also provided statement of export sales for financial year 2002-03 in respect of 5169/Mum/2015 M/s. Advance Power Display Systems Ltd., each of the models. The principle customers of the assessee from whom the orders are generated include Hewlett Packard, Cisco Systems, Foundry Networks, Brocade Communications and Riverstone Networks. We also observe that these customers are public companies located in USA and renowned companies in their fields. The business of the assessee and its turnover depends on orders generated from these customers and to secure business from these customers, extensive direct contact on a regular basis is necessary. We found that the immediate customer of the assessee - QCS, is located at Singapore and final customers of the assessee are mainly based in USA. The assessee had submitted details of foreign travel expenses vide letter dated 24 February 2006. The assessee had specified the period of visit and destinations visited. The places visited by these people included Singapore and various cities within USA, where various end customers of the assessee are located. Visits were also made to Shri Lanka and Japan for identifying new customers. The assessee also provided names of the customers visited, place of visit, persons with whom meetings, etc. were conducted and contact numbers of these customers. The assessee also submitted certain direct correspondences between the assessee and customers. These details have not been challenged or disputed by any of the authorities.
From the record, we also found that vide letter dated 24 January 2006, the assessee provided details of foreign exchange drawn along with copies of applications to bank and bank advices. It was also explained 5169/Mum/2015 M/s. Advance Power Display Systems Ltd., that the assessee requires more than 3,000 components in its manufacturing operations which are produced by more than 100 suppliers located outside India. The assessee assists QCS in Technical & Advisory capacity to help identify the sources of these components. However, the learned AO, however allowed only a deduction of mere Rs.5,00,000 on an estimated basis and disallowed the balance. The AO has mentioned that the appellant had not been able to substantiate that the expenditure incurred by it was for the purpose of business and also held that the expenditure is incurred for personal purpose also. The AO mentioned that the tours of the appellant are for an abnormally long period and such long tours can only be for medical reasons or for holiday trips. Accordingly, AO disallowed the part of the part of travelling expenditure and also levied penalty u/s.271(1)(c). However, the addition so made by the AO was confirmed by the CIT(A) and also by Tribunal, but merely confirming part of disallowance does not automatically leads to levy of penalty u/s.271(1)(c). As per our considered view, the penalty proceedings and quantum proceedings are independent of each other and therefore levy of penalty is not mandatory in case of every addition confirmed. We found that the assessee has made sufficient disclosure vide various submissions made to the AO at the time of assessment proceedings. The expenditure claimed by the assessee is accounted for in its books of accounts. The facts submitted by the assessee viz. dates and places of visit by the directors of the assessee have not been challenged by the AO or the appellate authorities.
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