PORTAL PLAYER (INDIA) PRIVATE LIMITED,BANGALORE vs. CIT, BANGALORE

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ITA 9/BANG/2016Status: DisposedITAT Bangalore15 July 2016AY 2003-045 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the nature of software expenditure (revenue vs. capital) is debatable. Merely disallowing a claim made in good faith does not automatically warrant a penalty unless there was an intention to reduce taxable income.

What were the facts?

The assessee claimed Rs. 36,78,988/- as software expenditure. The Assessing Officer (AO) treated it as capital expenditure and initiated penalty proceedings under Section 271(1)(c) for furnishing inaccurate particulars.

What were the issues?

Whether penalty under Section 271(1)(c) can be levied for claiming expenditure as revenue when it is considered capital by the AO, and whether such a claim made in good faith constitutes furnishing inaccurate particulars.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(2)Show list

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Income Tax Appellate Tribunal, BANGALORE BENCH C, BANGALORE

For Appellant: Shri. Chavali S. Narayan, CA

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH 'C', BANGALORE SHRI. ABRAHAM P. GEORGE, ACCOUNTANT MEMBER (Assessment Year : 2003-04) M/s. Portal Player (India) P. Ltd, (Merged with NVIDIA Graphics P. Ltd,) Plot No.6A & B, IT Park Layout, Nanakram guda, Hyderabad .. Appellant PAN : AABCP7418F v. Commissioner of Income-tax, Appeals -5, Bengaluru .. Respondent Assessee by : Shri. Chavali S. Narayan, CA Revenue by : Smt. Swapna Das, JCIT Heard on : 23.06.2016 Pronounced on : 15.07.2016 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER :

In this appeal filed by assessee it assails penalty levied u/s.271(1)(c) of the Income-tax Act, 1961 (‘the Act’ in short).

2.

Ld. AR strongly assailing the levy of penalty which was confirmed by CIT (A) on appeal by the assessee, submitted that assessee had claimed ITA.9/Bang/2016 Page - 2 Rs.36,78,988/- as software expenditure. As per the Ld. AR, AO had in the assessment proceedings, after verification of the bills came to a conclusion that the claim was for hardware like exchange servers and software kits. Explanation of assessee was that such expenditure did not result in enduring benefit and was revenue in nature. However, AO was not impressed. He held that software and hardware purchased by assessee gave enduring benefit to it and therefore outgo has to be treated as capital expenditure. Addition was made but depreciation was allowed.

3.

Thereafter proceedings were initiated u/s.271(1)(c) of the Act, for making a wrong claim. As per the AO assessee had furnished inaccurate particulars by claiming Rs.36,76,988/- as a revenue outgo, when it was a capital expenditure. Relying on judgment of Hon’ble Apex Court in the case of Union of India v. Dharmendra Textiles Processors and Others [306 ITR 277], AO levied a penalty on the said amount at the minimal level. Amount of penalty came to Rs.5,40,810/-.

4.

Appeal of the assessee before CIT (A) did not meet with any success. According to him assessee could not give any explanation for the claim made by it.

ITA.9/Bang/2016 Page - 3

5.

Now before us, Ld. AR submitted that it was true that assessee had made a claim for software expenditure of Rs.36,76,988/-. However according to him it was a debatable issue whether software and hardware expenditure could be treated as revenue or capital. Relying on the judgment of Hon’ble Apex Court in the case of CIT v. Reliance Petro Products P Ltd, [322 ITR 158], Ld. AR submitted that preferring a claim of expenditure in good faith cannot be a reason for levying penalty, just for a reason that claim was disallowed.

6.

Per contra, Ld. DR supported the order of lower authorities.

7.

I have perused the orders and heard the rival submissions. Claim made by assessee as revenue expenditure comprised of the following items:

ITA.9/Bang/2016 Page - 4

8.

Though some of the items listed above do have a flavour of hardware, it is clear that substantial software content would also have been in-built in such hardware. Many of items were simple software service tools. The question whether expenditure incurred for acquiring software was capital or revenue in nature is not free from debate. Just because assessee made a claim, we cannot say that it had concealed any particulars or furnished inaccurate particulars. Disallowance of a claim by itself would not entail a penalty. Unless the claim was made with an intention to reduce the taxable income, there cannot be a levy of penalty. In my opinion this was not a fit case for levy of penalty u/s.271(1)(c) of the Act. Penalty stands deleted.

9.

In the result, appeal of the assessee is allowed.

Order pronounced in the open court on 15th day of July, 2016.

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