Pr. Commissioner Of Income Tax-17 v. M/S. United Marine Services

DDR IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONINCOME TAX APPEAL NO. 1247 OF 2016 Pr. Commissioner of Income Tax-17..Appellant Vs. M/s. United Marine Services ..Respondent …......... Mr. Sham Walve for appellant. …......... CORAM : AKIL KURESHI & M.S. KARNIK, JJ. DATE : 4[th] JANUARY, 2019 P.C.: This Appeal is filed by the Revenue challenging the judgment of Income Tax Appellate Tribunal dated 2/11/2015. Following questions are raised for our consideration : A.Whether on the facts and circumstances of thepresent case the Hon'ble Tribunal was justified indeleting the penalty of Rs.55,30,180/- levied undersection 271(1) (c) of the I.T. Act, 1961 ? B.Whether on the facts of the case and in Law,the Hon'ble Tribunal was justified in allowing therelief to the Assessee, ignoring the fact that the 29. itxa 1247-16.docassessee had not filed correct return of incomevoluntarily but only when scrutiny assessment wasdone, which amounts to concealment of income withrespect of the concerned year, i.e. A.Y.2009-10 ? 2.The issue pertains to penalty levied by the AssessingOfficer under Section 271 (1) (c) of the Income Tax Act, 1961('the Act' for short) which the Tribunal deleted. In the impugnedjudgment the Tribunal noted that dis-allowance required to bemade under Section 40(a)(ia) of the Act were duly furnished inthe Tax Audit Report. Such Tax Audit Report was received on30[th] September, 2009 i.e. on the last date for filing return ofincome for the concerned assessment year. The Tribunal,therefore, accepted the assessee's contention that not makingdis-allowance was a pure oversight or an error. The entire issueis thus based on the facts. 3.We further notice that the Tribunal relied on thedecision of the Hon'ble Supreme Court in case of PriceWaterhouse Cooper (P) Ltd. vs. CIT reported in 348 ITR 306 29. itxa 1247-16.doc(SC) in which the Hon'ble Supreme Court accepted theassessee's explanation that not furnishing certain income to taxwas a mistake and thereby deleted the penalty. We also noticethat the Hon'ble Supreme Court in case of Commissioner ofIncome Tax vs. Reliance Petroproducts Pvt. Ltd. reported in322 ITR 158 (SC) has held that there is no finding that anydetails supplied by the assessee in its return were found to beincorrect or erroneous or false, there is no question of invitingthe penalty. A mere making of the claim, which is notsustainable would not give rise to penalty proceedings. 4.In the result, Income Tax Appeal is dismissed. (M.S. KARNIK, J.) (AKIL KURESHI, J.)