IN THE HIGH COURT OF DELHI AT NEW DELHI 
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   ITA 547/2012  
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 CIT              ..... Appellant 
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 Through: Ms. Rashmi Chopra, Sr. Standing Counsel. 
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 versus 
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 SUBROS LTD           ..... Respondent 
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 Through: Mr. Rajesh Kumar, Advocate. 
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 CORAM: 
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 HON'BLE MR. JUSTICE S. RAVINDRA BHAT 
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 HON'BLE MR. JUSTICE R.V.EASWAR 
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 O R D E R 
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       07.09.2012 
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 The Revenue urges that the impugned order of the Income Tax 
 Appellate Tribunal (?Tribunal?, for short) dated 27.08.2010 in ITA 
 No.1326/Del/2010 is erroneous.  In support of its appeal learned counsel 
 argues that the assessee in this case did not file a revised return but 
 filed a fresh calculation after notice was issued under Section 143(2) of 
 the Income Tax Act, 1961 (?Act?, for short). 
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 The brief facts of the case are that the assessee had sought 
 deduction in the bonafide belief that the approval under Section 
 35(2AB)(1) of the Act would be granted from the date of its application 
 to the competent authority.  However, the approval granted did not relate 
 back to the date of application i.e. sometime in September, 2004.  The 
 assessee accordingly filed a revised computation of income in the course 
 of the assessment proceedings, restricting its claim to 100% instead of 
 150% on the expenses incurred towards research and development before 
 28.01.2005.  It argued that there was neither any concealment nor did it 
 furnish any inaccurate particulars.  The penalty order of the Assessing 
 Officer was set-aside by the CIT (Appeals).  The Revenue?s appeal was 
 dismissed by the Tribunal. 
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 In the impugned order the Tribunal held as follows: - 
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 ?7.2 We find that section 271(1)(c) of the Act postulates 
 imposition of penalty for furnishing of inaccurate particulars and 
 concealment of income.  In the present case we find that assessee was 
 under the bonafide belief by the time of filing the return that it will 
 receive the approval for the weighted deduction.  The fact that the said 
 approval had not been received was duly reflected by way note in the 
 return of income.  Hence, the assessee cannot be held guilty for 
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 furnishing inaccurate particulars and concealment of income.  As earlier stated prescribed authority vide letter dated 11.12.2006 gave the 
 approval from 28.5.2006.  Hence by this time the stipulated time for 
 filing revised return u/s 139(5) has also expired.  The only reason given 
 by the Assessing Officer in para 3.8 of his order is that assessee has 
 not filed any return revised return u/s 139(5) of the act.  Assessing 
 Officer further mentioned that though the assessee has received approval 
 from DSandIR in December, 2006 no return was filed within due time i.e. 
 31.3.2006.  This clearly shows the non-application of the mind by the 
 Assessing Officer.  As nobody is expected to do the impossible.  After 
 receiving the approval letter in December, 2006, the assessee cannot be 
 expected to do the impossible and file a return of on previous dates i.e. 
 by 31.3.2006. 
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 7.3 That assessee has not appealed against the addition can also not be 
 said to be a reason for levying penalty.  Assessee itself filed revised 
 computation and paid tax, so there is no question of filing an appeal. 
 Moreover no case has been made out that assessee at the time of filing of 
 return could not have had a bonafide belief that it will not receive the 
 approval.  That assesse (sic.) was awaiting the approval was clearly 
 depicted by way of note in return.  SO there is adequate and proper 
 disclosure of facts. 
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 7.4 In this background, in our considered opinion section 271(1)(c) is 
 not attracted here, which mandates levy of penalty for concealment of 
 income or furnishing of inaccurate particulars.  The case law referred by 
 the Ld. Departmental Representative of Escorts Finance Ltd. (Supra) is 
 not applicable on the facts of the present case.  That case was with 
 reference to an ex-facie inadmissible claim made by the assessee.  In the 
 present case by no stretch of imagination assessee claim can be 
 categorized as ex-facie bogus claim.  In the case of C.I.T vs. Zoom 
 Communication Pvt. Ltd. (supra) in ITA No.7/2010 vide order dated 
 24.5.2010 the Hon?ble Delhi High Court confirmed levy of penalty for 
 claiming an amount which was purely capital in nature as revenue and also 
 claiming income tax paid as deduction.  There was no explanation that 
 mistake was bonafide.  These case laws are clearly not applicable.  The 
 assessee here had made a claim and disclosed the basis of the same.  The 
 same cannot be said to not bonafide.? 
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 The Tribunal relied on certain other decisions of coordinate 
 Benches which have been mentioned by it.  The impugned order also applies 
 the ratio of CIT v. Reliance Petro Products Ltd., (2010) 322 ITR 158 in 
 support of its reasoning. 
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 Having regard to these the Court holds that the reasoning of the 
 Tribunal is sound and justified, and does not call for any interference. 
 No substantial question of law arises.  The appeal is accordingly 
 dismissed. 
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 S. RAVINDRA BHAT, J 
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 R.V.EASWAR, J 
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 SEPTEMBER 07, 2012 
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 hs 
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 $ 15 
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