TaxTMI 
TaxTMI 
2017 (1) TMI 888
X X X X Extracts X X X X
X X X X Extracts X X X X
....ircumstances of the case and in law, the Id. CIT(A) erred in deleting the penalty under section 271(l)(c ) of the Income Tax Act. 1961." (ii) "The appellant prays that the order of the ld.CIT(A) on the above ground be set aside and that of the Assessing Officer be restored." 2. During the course of hearing, none appeared on behalf of the assessee. Ld. DR relied upon the order of the AO. 3. The brief background of the case is that the assessee is having manufacturing facility at Daman comprising of 2 units, i.e. Unit I and Unit II. Assessee had shown loss in respect of Unit I whereas claimed deduction u/s 80IB in respect of Unit II. During the assessment proceedings, the AO found that expenses of the units are not proportionat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cation of expenses. It was also submitted that all the material facts required for computation of total income including bifurcation of expenses were submitted truly and correctly. The re-working was done by the AO only on the ground that the assessee had shown higher turnover of the eligible unit. It was also submitted that the claim of expenses was based upon the allocation done on the basis of certificate obtained from a professional expert i.e. Shri PM Joshi, Chartered Accountant in form 10CCB. Under these circumstances, it can be said that the claim was based upon genuine and bonafide belief of the assessee, more so, when nothing false or bogus has been detected by the revenue. Ld. CIT(A) considered the submissions of the assessee and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... there is only a rebuttable presumption of concealment in law and the same can be said to be rebutted by the assessee when the claim is based on the certificate issued by a qualified C.A. and this would constitute bonafide belief and reasonable cause for not imposing penalty. As contented by the representative, Hon'ble Supreme court in the case of CIT vs. Reliance Petro Products Pvt Ltd (322 ITR 158) has recently held that mere making of a claim which is not sustainable in law would not amount to furnishing inaccurate particulars. As contended by the representative, the Hon'ble Chandigarh Bench Tribunal in the case of ACIT vs Arisudana Spinning Mills Ltd (19 DTR 1) held as under: 'Now, the question is as to whether the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... assessee are duly audited. The return of income was accompanied by the audit report required under section 80IA and there is nothing to suggest, rather there is no charge against the assessee that the report of the auditor was collusive". From the above, it is clear that when the claim of the assessee is based on the opinion of the technical expert including report of C.A. in Form No.1OCCB, No concealment penalty could be imposed. I, therefore, hold that there is no ground for levying penalty regarding apportionment of expenses relating to Unit-I& Unit-H. Regarding interest income, it is true that the appellant did riot press the ground before the Hon'ble Tribunal but the necessary and relevant fact s were submitted b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erein bifurcation of expenses was made by a professional expert. The AO did not examine the concerned Chartered Accountant during the course of penalty proceedings before rejecting the explanation of the assessee. Nothing was brought on record by the AO to negate the assertion of the assessee that the claim u/s 80-IB was based upon his bona fide belief for making apportionment of expenses in the manner as was done by the assessee. 6. Even otherwise, the re-allocation exercise done by the AO would also involve some kind of guess work which cannot be said to be purely scientific or devoid of any flaws. If the allocation done by the assessee was not precise and correct as per facts of the case, then, it can also not be said that the re-allo....