The Commissioner Of Income Tax v. M/S Shiv Shakti Exports

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. I.T.A. No.267 of 2010 (O&M) & connected case beingI.T.A. No.268 of 2010Date of decision: 13.8.2010 The Commissioner of Income Tax. Vs. M/s Shiv Shakti Exports. -----Appellant. -----Respondent. CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOELHON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:-Mr. Yogesh Putney, Advocatefor the revenue.for the revenue. --- ADARSH KUMAR GOEL, J. 1. This order will dispose of I.T.A. No.267 and 268 of2010, as common questions of law are involved in both theappeals. 2. I.T.A. No.267 of 2010 has been preferred by therevenue under Section 260-A of the Income Tax Act, 1961 (forshort, “the Act”) against the order dated 20.5.2009 in I.T.A.No.3814/Del/2008 passed by the Income Tax Appellate Tribunal,Chandigarh, proposing to raise following substantial questions oflaw:- “1. Whether on the facts, and in the circumstancesof the case, the Income-Tax Appellate Tribunalwas right in law in deleting the penalty imposedu/s 271(1)(c) on the amount of deductionclaimed u/s 80-IB on export incentives byof the case, the Income-Tax Appellate Tribunalwas right in law in deleting the penalty imposedu/s 271(1)(c) on the amount of deductionclaimed u/s 80-IB on export incentives by ii) iii) holding that there was no deliberate furnishingof inaccurate particulars by the assessee, giventhe fact that the decision of the Hon’bleSupreme Court in Sterling Foods Vs. CIT dated15.04.1999 (237 ITR 579) disallowing claim ofdeduction under Chapter VIA of the Act onexport incentives was already available to theassessee at the time of filing the return ofincome for A.Y. 2002-03, and therefore, theassessee was evidently filing inaccurateparticulars of income in claiming 80IB on exportincentives.?” “Whether the decision of the Income-TaxAppellate Tribunal to delete the penalty u/s 271(1)(c) of the Act is justified in the light of thedecision of the Hon’ble Supreme Court in LibertyIndia Vs. CIT (317 ITR 218) whereby the non-allowability of 80IB deduction on exportincentives has been re-affirmed?” “Whether the decision of the Income-TaxAppellate Tribunal quashing the penalty orderu/s 271(1)(c) on the ground that there is nodeliberate concealment is justified in the light ofthe decision of the Hon’ble apex Court inDharmendra Textile Processors & Ors., 306 ITR277 (SC), which has held that mens rea is notan essential ingredient for levy of penalty u/s271(1) (c) of the Act, and that levy of suchpenalty is mandatory as remedy for loss torevenue, and given the fact that such loss torevenue has occurred in the instant case due towrong claim by the assessee w.r.t. deductionu/s 80IB?” 3. Since the matter is covered by order of this Courtdated 28.7.2010 in I.T.A. No.225 of 2010 CITv. M/s RajOverseasagainst the revenue, these appeals are dismissed. 4. A photocopy of this order be placed on the file of otherconnected case. (ADARSH KUMAR GOEL) JUDGE August 13, 2010MITTAL )ashwani ( AJAY KUMAR JUDGE