DATA INGENIOUS GLOBAL LIMITED,ALWAR vs ACIT, CENTRAL CIRCLE, ALWAR

fu/kZkfjrh dh vksj ls@Assessee by : Shri P.C. Parwal, CA jktLo dh vksj ls@Revenue by: Mrs. Monisha Choudhary, Addl. CIT-DR lquokbZ dh rkjh[k@Date of Hearing : 14/08/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 27/08/2024 vkns'k@ORDER PER: SANDEEP GOSAIN, JM This appeal filed by the assessee is directed against order of the ld. CIT(A), Jaipur -4 dated 30-04-2024 for the assessment year 2011-12 raising therein following grounds of appeal.

‘’1. That the ld. Commissioner of Income-Tax (Appeals)-IV Jaipur has erred in law as well as on the facts and circumstances of the case in not following the CBDT circular number 25/2015 F.No.279/Misc./140/2015/ITJ dated 31.12.2015, wherein the decision of hon.ble Delhi High Court in CIT v/s DATA INGENIOUS GLOBAL LTD. VS ACIT, CENTRAL CIRCLE, ALWAR Nalwa Sons Investment Limited dated 26.08.2010 ITAno. 1420/2009 was accepted, as relied upon by the assessee company and referred to on page number 15 of the appellate order, which is binding on all the subordinate authorities of the department, with respect to Rupees 2712184.00, without giving any reasoning, thus the appellate order so framed is in total disregard of the CBDT circular thus, deserves to be quashed.

That the ld. Commissioner of Income-Tax (Appeals)-IV, Jaipur has erred in law as well as on the facts and circumstances of the case in not following the CBDT circular number 25/2015F.No.279/Misc./140/2015/ITJ, whereas the said CBDT circular have been followed by the same appellate authority in the assessee’s own case for the Assessment Year 2010-11 vide appeal number CIT (A), Jaipur- 4/10137/2018-19 and for the Assessment Year 2012-13 vide appeal number CIT (A), Jaipur- 4/10142/2018-19 both dated 30.04.2024, i.e. the same date as that of the order under appeal, having the same set of facts, thus the order so passed is against the well established principle of consistency as upheld by apex court in the case of Radhasaomi Satsang V/s Commissioner of Income-Tax 193 ITR 321 (SC) and Parshuram Pottery Works v/s Income Tax Officer 106 ITR 1 (SC), thus the order so passed is in total disregard of the apex court decision as referred to hereinabove and deserves to be quashed.

That the ld. Commissioner of Income-Tax (Appeals) – IV, Jaipur has erred in law as well as on the facts and circumstances of the case in not considering the assessment order dated 31.12.2017 passed under section 143(3) r.w.s. 153A of the Income Tax Act, 1961, as illegal on the basis of decision of hon.ble Abhisar Buildwell (P) Limited 454 ITR 212 (SC), in as much as no incriminating material was found during the course of search, as claimed and referred to in appellate order in para number 5 to 5.7 on page number 28 to 34 while passing of the order under appeal, which is the foundation of the penalty order, while relying upon the decision of apex court in the case of Kanwar Singh Saini v/s High Court of Delhi (2012) 4 SCC 307 (SC), thus the order under appeal so passed against the decision of apex court is rendered null and void and deserves to be quashed.

That the ld. Commissioner of Income-Tax (Appeals) –IV, Jaipur upholding the invocation of Explanation 5A to section 271(1)© of the Income Tax Act, 1961,whereas the Explanation 5A to section 271(1)© has no application in as much as, the said explanation 5A starts with “in the course of a search”, whereas in the instant case the addition was made by the assessee company himself in its return of income of Rupees 2712184.00 was not found “in the course of search”, thus the invocation of explanation 5A deserves to be

That the ld. Commissioner of Income-Tax (Appeals)-IV, Jaipur has erred in law as well as on the facts and circumstances of the case in upholding the penalty u/s 271(1) © of the Income Tax Act, 1961 with reference to variation of income of Rupees 2712184.00, without first distinguishing and discussing the various case laws of hon.ble Supreme Court, various hon.ble High Court and hon.ble Income Tax Appellate Tribunal, as relied upon by the appellant in its written submissions reproduced in the order appeal against, under such circumstances, the order under appeal deserves to be quashed.

That the ld. Assessing officer has erred in law as well as on the facts and circumstances of the case in imposing a penalty upon variation of income of Rupees 2712184.00, between the returned income filed u/s 139(1) of the Income Tax Act, 1961 and as filed under section 153A of the Income Tax Act, 1961, is on account of “bona fide and clerical mistake”, which does not meet the basic limb of concealment of income i.e. “deliberate or conscious attempt”, and the ld Commissioner of Income-Tax(A)-IV, Jaipur, has erred in sustaining the same.

That the ld. Assessing officer has erred in law as well as on the facts and circumstances of the case in imposing a penalty upon variation of income of Rupees 2712184 between the returned income filed u/s 139(1) of the Income Tax Act, 1961 and as filed under section 153A of the Income Tax Act, 1961, under the circumstances, when the returned income u/s 139(1) of the Income Tax Act, 1961 is at NIL, returned income filed u/s 153A of the Income Tax Act, 1961 is also at NIL and also assessment order framed is at NIL under normal provisions of the Income Tax Act, 1961 and learned Commissioner of Income- Tax (Appeals)-IV Jaipur has erred in upholding the levy of penalty with reference to Rupees 2712184.00.’’ 2.1 All the grounds raised by the Appellant relates to challenging the imposition and upholding of penalty under section 271 (1)© of the Income Tax Act. Therefore the Bench has decided to dispose off these Grounds through the present consolidated order.

DATA INGENIOUS GLOBAL LTD. VS ACIT, CENTRAL CIRCLE, ALWAR 2.2 During the course of hearing, the ld. AR filed the written submission and further submitted that the AO be directed to delete the penalty levied by him.

2.3 On the other hand, the ld.DR supported the order of the ld.CIT(A)

2.4 I have heard the counsel for both the parties and have also gone through the orders passed by the revenue authorities, documents placed on record as well as judgement cited by the respective parties. From the records I found that it is an undisputed fact that the assessee has been assessed on book profit under section 115 JB both under section 143( 3) and under section 153A of the Act and there is no variation in the book profit declared and that assessed under section 153A of the Income Tax Act. As per ld.AR the difference has arisen only in computing the income declared in original return under the normal provisions of the Act and the income declared in the return filed under section 153A of the Act. This difference according to ld. AR has arisen on account of a bonafide mistake and has not been deducted even by the AO due to search action carried on the assessee. From the records and after hearing the parties I also found that the difference has arisen on account of the bonafide mistake and has not been deducted even by the AO during the search. Thus, in my view on such bonafide mistake of declaring the income in the original return vis a vis that declared in the return filed under section 153A cannot be termed as concealment of income and, therefore, no penalty on such DATA INGENIOUS GLOBAL LTD. VS ACIT, CENTRAL CIRCLE, ALWAR amount which is due to a bona fide error can be imposed. Even otherwise also the CBDT in circular number 25 of 2015 considering the decision of Delhi High Court in the case of Nalwa Sons Investment Limited versus CIT where in it was held that when the tax payable on the income completed under the normal procedure is less than the tax payable under the deeming provision of section 115 JB of the Act then in that eventuality penalty and the section 271(1)© of the Act could not be imposed with reference to the additions made under normal provisions and therefore this decision having attained finality is now a settled law that prior to 01.04.2016 where the income tax payable in the total income as computed under normal provisions of the Act is less than the tax payable on book profit under section 115 JB of the Act then in my view the penalty under section 271(1)© of the act is not attracted with reference to the additions / disallowance made under the normal provisions. Hence, after going through the facts of the case and after evaluating the orders passed by the revenue authorities, I am of the view that since income assessed under the normal provision of the Act in the present case is less than the book profit computed under section 115 JB of the act therefore, no penalty under section 271(1)© could be imposed . Therefore, the Bench directs the AO to delete the penalty.

DATA INGENIOUS GLOBAL LTD. VS ACIT, CENTRAL CIRCLE, ALWAR 3.0 In the result, the appeal of the assessee is allowed with no orders as to costs. Order pronounced in the open court on 27 /08/2024.

Sd/- ¼lanhi xkslkbZ½ (Sandeep Gosain) U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 27/08/2024 *Mishra आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- M/s. Data Ingenious Global Limited, Alwar Jaipur 2. izR;FkhZ@ The Respondent- The ACIT, Central Circle, Alwar 3. vk;dj vk;qDr@ The ld CIT 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No.652/JP/2024) vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेजज. त्महपेजतंत

DATA INGENIOUS GLOBAL LIMITED,ALWAR vs. ACIT, CENTRAL CIRCLE, ALWAR