The Commissioner Of Income Tax, Karnal v. Shri Sushil Gupta

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. ITA No. 414 of 2010 Date of decision: 28.10.2010 The Commissioner of Income Tax, Karnal -----Appellant Vs. Shri Sushil Gupta ----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOELHON’BLE MR. JUSTICE AJAY KUMAR MITTAL Present:-Mr. Yogesh Putney, Senior Standing Counsel for the revenue. Adarsh Kumar Goel,J. This appeal has been preferred by the revenue under section 260A ofthe Income Tax Act, 1961 (for short, ‘the Act’) against order of the Income TaxAppellate Tribunal, Delhi Bench ‘G’ New Delhi dated 9.10.2009 in ITANo.57/Del/20-09, proposing to raise following substantial questions of law:- “i) Whether on the facts and in the circumstances of the case, theIncome Tax Appellate Tribunal was right in law in deleting thepenalty imposed under section 271(1) ( c) on the amount ofdeduction claimed under section 80IB on export incentives byholding that there was no deliberate furnishing of inaccurateparticulars by the assessee, given the fact that the decision of theHon’ble Supreme Court in Sterling Foods v. CIT dated 15.4.1999(237 ITR 579) disallowing claim of deduction under Chapter VIAof the Act on export incentives was already available to theassessee at the time of filing the return of income for Assessmentyear 2002-03, and therefore, the assessee was evidently filinginaccurate particulars of income in claiming 80IB on exportincentives? ii) Whether the decision of the Income Tax Appellate Tribunal todelete the penalty under section 271(1) (c) of the Act is justified inthe light of the decision of the Hon’ble Supreme Court in Liberty India v. CIT (317 ITR 218) whereby the non-allowability of 80IBdeduction on export incentives has been re-affirmed? iii) Whether the decision of the Income Tax Appellate Tribunalquashing the penalty order under section 271(1) (c ) on the groundthat there is no deliberate concealment is justified in the light of thedecision of the Hon’ble Apex Court in Dharmendra TextileProcessors & Others, 306 ITR 277 (SC) which has held that mensrea is not an essential ingredient for levy of penalty 271(1)( c) ofthe Act and that levy of such penalty is mandatory as remedy forloss to revenue, and given the fact that such loss to revenue hasoccurred in the instant case due to wrong claim by the assesseewith reference to deduction under section 80IB? It is not disputed that identical appeal filed by the revenue has beendismissed by this Court vide order dated 28.7.2010 in The CIT v. M/s RajOverseas, ITA No.225 of 2010.. Accordingly, this appeal is dismissed. (Adarsh Kumar Goel) Judge October 28, 2010‘gs’ (Ajay Kumar Mittal) Judge