12 January 2011
There are case laws against this. 1.CIT v Mithalal Ramachandra (82 ITR 470),CIT v Indo-American Electricals Ltd (45 CTR 146)and Hindustan Steel Ltd v State of Orissa (83 ITR 26)
12 January 2011
The websites are paid sites like taxindiaonline, taxmanagementindia.com, etc. Further, here is a draft but not the same issues but differnt. a few text of the same is here below for your ready references;
We further submit that the concealment can be only of fact and it cannot be of law and we have not concealed any facts relating to income. In this respect, reliance is placed on the following cases:
Impulse India (P) Ltd. vs. ITO (40 ITD 36) (Delhi); ITO vs. R.B.G.M. Modi & Ors. (P) Ltd. (31 TTJ 550) (Delhi); Yasmin Properties (P) Ltd. 46 ITD 331 D.M. Dahanukar v CIT (65 ITR 280) ITO vs. Bakul Cashew & Co. (28 ITD 197) (Coch).
The aforesaid disallowance was made in utter disregard of the statements, proofs and explanations placed on record by us that have not been proved erroneous or inaccurate. The disallowance has been made based on the details submitted by us and, therefore, it is respectfully submitted that there has been no concealment of any income.
Without prejudice to above, we submit that merely because our contentions are not accepted by the Department, penalty cannot be levied. Further, it is a settled law that the Assessee cannot be penalised for canvassing a view different from the Departmental view and where the Assessee is merely contending for a particular position contrary to the view taken by the I.T.O.
In this regard, we place reliance on the following decisions:
In the decision of Hon'ble Calcutta High Court in Burmah-Shell Oil Storage and Distribution Co. of India Ltd. Vs. ITO (112 ITR 592) wherein it has been held that the rejection of the contention raised by the assessee cannot lead to the conclusion that there has been concealment of particulars of income or furnishing of inaccurate particulars thereof by the assessee. Therefore, you will appreciate that irrespective of whether the said contentions are ultimately upheld or turned down, they cannot be termed as frivolous, dishonest or mala fide.
The Hon'ble Bombay High Court in the of case CIT Vs. Shivlal Desai & Sons (1978) (114 ITR 388) has categorically held that merely because there are certain additions/ disallowances in the assessment proceedings, it will not bring in its wake the levy of penalty.
The Hon'ble Punjab & Haryana High Court in case of CIT Vs. Ajaib Singh & Co. (170 CTR 489) has held that merely because certain expenses claimed by the assessee has been disallowed it does not mean that the assessee has furnished incorrect particulars of its income.
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