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JaIn Exports (P.) Ltd. Vs. Deputy Commissioner of - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Delhi
Decided On
Reported in(1999)68ITD126(Delhi)
AppellantJaIn Exports (P.) Ltd.
RespondentDeputy Commissioner of
Excerpt:
1. this appeal by the assessee is directed against the order passed by the cit, delhi-ii, new delhi under section 263 of income-tax act, 1961 on 27-3-1997 for assessment year 1994-95.2. the assessee has raised as many as 10 grounds in the grounds of appeal. however, these grounds can be briefly summarised as under : 2.1. in ground nos. 1 to 3, the assessee has challenged the validity of initiation of proceedings under section 263 and also the assumption of jurisdiction by the cit under the said provision. the order passed by the cit under section 263 has been challenged as being patently invalid.2.2. in ground nos. 4 to 7, the assessee has challenged the finding given by the cit holding that the redemption fine of rs. 5 crores paid by the assessee-company being in the nature of penalty.....
Judgment:
1. This appeal by the assessee is directed against the order passed by the CIT, Delhi-II, New Delhi under section 263 of Income-tax Act, 1961 on 27-3-1997 for assessment year 1994-95.

2. The assessee has raised as many as 10 grounds in the grounds of appeal. However, these grounds can be briefly summarised as under : 2.1. In ground Nos. 1 to 3, the assessee has challenged the validity of initiation of proceedings under section 263 and also the assumption of jurisdiction by the CIT under the said provision. The order passed by the CIT under section 263 has been challenged as being patently invalid.

2.2. In ground Nos. 4 to 7, the assessee has challenged the finding given by the CIT holding that the redemption fine of Rs. 5 crores paid by the assessee-company being in the nature of penalty paid for infraction of law is not allowable as deduction. The A.O. failed to examine the aforesaid claim of the assessee. These findings given by the CIT have been challenged in ground Nos. 4 to 7.

2.3. In ground Nos. 8 and 9, the assessee has submitted that the CIT has erred in arriving at the conclusion that the order passed by the D CIT, Special Range-3 is without application of mind and further finding that the claim of deduction of expenses have not been examined at all in respect of :- (i) Sundry debtors of Rs. 9,99,786 written off as bad debts have been allowed without any verification. No details are available on record.

(ii) Excess provision of income of Rs. 3,94,113 of earlier years written off and charged to profit and loss account has been allowed without verifying whether these incomes were fully brought to tax.

(iii) A sum of Rs. 17,752 paid by way of employees contribution to provident fund was as per auditors report in Form 3CD was to be paid on or before 15-4-1994 but was paid on 16-4-1994 and should have, therefore, been disallowed under section 43B. (iv) Redemption fine of Rs. 10 lakhs and penalty of Rs. 1 lakh imposed by Customs authority in import of stainless steel being contested by the company at various appellate levels are indicated in Note No. 3 to the Schedule No. 13 of the accounts which has not been examined.

2.4. Ground No. 10 is general in nature in which the impugned order has been challenged on the ground that no proper and valid opportunity was granted by the CIT.3. Shri R. Ganesan, the learned Chartered Accountant, appearing on behalf of the assessee submitted that the order passed by the CIT is wholly without jurisdiction and is patently invalid. The ld. counsel submitted that he would first of all like to address his arguments in relation to enhancement of income by CIT by Rs. 5 crores and holding that the redemption fine paid by the assessee-company aggregating to Rs. 500 lakhs is not allowable as deduction.

4. The appellant M/s. Jain Exports Pvt. Ltd. imported two separate consignments of refined industrial coconut oil on the 10th and 22nd of September, 1982 at Kandla Port from Colombo weighing about 302, 552 M.Tonnes and 5342.36 M. Tonnes of the CIT value of Rs. 1,63,67,050 and Rs. 2,91,21,450 respectively. The import policy of 1980-81 where under the two consignments were imported, "coconut oil was mentioned under entry 5 of Appendix 9 thereof as a canalized item which could be imported through the State Trading Corporation (STC) only". Admittedly, these imports were not made through STC. The assessee contended that only the edible variety of coconut oil was a canalised item. This contention of the assessee was not accepted by the concerning authorities. The Collector of Customs and Central Excise, Ahmedabad vide two separate adjudicating orders bearing Nos. 6 and 7 of 1982 ordered confiscation of both the consignments under section 111(a) of the Customs Act with an option to redeem the goods on payment of a fine of Rs. 2 crores and Rs. 3 crores respectively, as provided in section 125 of the Customs Act, 1962. No penalty was levied under section 112 of the said Act even though the Collector found that the "import policy and its provisions were deliberately flouted" as in his view the redemption fine imposed in lieu of confiscation of the impugned goods was sufficient to meet the ends of justice. It was further held that if the importers exercise their option to redeem the goods they may clear the goods on payment of duty at preferential rates applicable to goods of Srilanka Origin. Both these orders were passed on 17/18-12-1982 respectively.

4.1. The assessee has challenged the aforesaid orders by way of writ petitions before the Hon'ble High Court of Delhi in W.P. Nos. 4037 and 4038 of 1982. The Full Bench of Hon'ble Delhi High Court by a majority decision dismissed the writ petitions and permitted the assessee (importers) to approach the Central Excise & Gold Control Tribunal (Tribunal by way of appeals insofar as the order in regard to the redemption fine was concerned. The judgment of the Hon'ble High Court in [1987] 29 ELT 753.

4.2. Against the said judgment of the Hon'ble High Court, the importers approached the Hon'ble SC by way of a Special Leave. The Hon'ble SC by a common judgment on 5th May, 1988 in Civil Appeal Nos. 2705 and 5383 of 1985 disposed of the aforesaid petitions, which is reported as Jain Exports (P.) Ltd. v. Union of India 4.3. The assessee importer had preferred two appeals before the Tribunal being Appeal Nos. 863 and 864 of 1985. The appeals relating to the question of quantum of redemption fine was heard by a Two-Member Bench of the Tribunal. The technical member by his order dated 4-4-1986 took the view that the appeals deserved to be dismissed both on merits and as barred by limitation. The Judicial Member by his order dated 4-6-1986 took the view that the appeal should be partly allowed by reducing the redemption fine to 35 per cent of the landing cost of the two consignments. In view of these difference of opinions, between the two members, the matter was referred to a Three-Member Bench at New Delhi. The Bench vide its order dated 5th December, 1986 took the view that since the Delhi High Court had remitted the matters to the Tribunal for consideration of the question of quantum of redemption fine levied by the Collector of Customs, it was not open to the Tribunal to dismiss the appeals as barred, by limitation. However, on merits the Tribunal concurred with the view of the Technical Member. In other words, the Third Member Bench of the Tribunal did not favour any reduction in the redemption fine in both the cases.

4.4 The importers filed writ petitions against the said decision of the Tribunal under article 32 of the Constitution of India before the Hon'ble SC which was disposed of vide order dated 23-1-1990. The Hon'ble SC set aside the Tribunal's order dated 5-5-1986 and remitted the appeals to the Tribunal for re-consideration in the light of the observations of the Hon'ble Court in the said judgment. One of the main points which were required to be reconsidered by the Tribunal relates to the contention of the assessee that their action was bona fide, a fact which had a direct bearing on the question of quantum of the redemption fine.

4.5. Pursuant to the aforesaid directions, both the appeals were reheard by the Tribunal on the limited question regarding the quantum of the redemption fine. The Tribunal came to the conclusion that the importers' action could not be said to be bona fide. Against the said decision of the Tribunal, the importers approached the Hon'ble SC under article 136 of the Constitution. The said SLP Nos. 9955 and 9956 of 1990 numbered as Civil Appeal Nos. 4917 and 4918 of 1991 were allowed by the Hon'ble SC vide order dated 29-11-1991. The Union of India and others, the respondents in the aforesaid Civil Appeal Nos. 4917 and 4918 preferred review petitions RP No. 75-76 and 635 of 1992 which were allowed by the Hon'ble SC on 21-10-1992 and these appeals and writ petitions were directed to be reheard. The earlier order dated 29-11-1991 passed by the Hon'ble SC in these appeals ceased to be operative. The aforesaid review petition was finally decided by the Hon'ble SC on 14-7-1993.

4.6. The Hon'ble Supreme Court in the aforesaid judgment dated 14-7-1993 dismissed both the appeals as well as writ petitions filed by the assessee importer. The Hon'ble Apex court observed that the importers despite the opportunity given to them to place on record the material as is relevant to the question of bona fide such as details regarding transactions for appreciating why the sales was effected on high seas and the profit if any derived from sale, etc., did not furnish the required information before the Tribunal or before the High Court. The Hon'ble SC at page 16 of the said judgment observed as under : "It is thus obvious that the failure to produce such vital and material evidence impinges on the claim that the importers had acted in good faith. This single fact in our view is sufficient to non-suit the importers." The Hon'ble SC in the concluding para of the said judgment dated 14-7-1993 at pages, 20 and 21 observed as under : "For the foregoing reasons we are satisfied that the importers' contention that the redemption fine should be wholly waived or substantially reduced as their action in importing the goods under OGL was bona Aide is not well founded. Even if the transaction has in fact resulted in a loss (we cannot delve into it for the first time in this Court) it will not make any difference. We feel that taking cover under the earlier orders passed in the case of M/s.

Jain Shudha Vanaspati Ltd. and the letter of the STC, the importers have tried to create the impression that they were innocent victims of the subsequent interpretation put on the relevant entry, ignoring the fact that the licences were revalidated on certain terms and conditions which did not permit except through the STC. We are, therefore, satisfied that the import under OGL was not a bona fide Act. We, therefore, dismiss both the appeals as well as the writ petition with costs. Hearing cost quantified at Rs. 10,000." 4.7. The ld, counsel submitted that the relevant accounting year ended on 31-3-1994. The final accounts were made on 2-9-1994 as is evident from the audited (printed) balance sheet submitted in the compilation.

A note in the printed annual report for the year 1993-94 at internal page 27 thereof was given in which it was specifically mentioned that the details of purchases shown in the quantitative information in respect of opening stock, purchases, sales and closing stock for the year ended on 31-3-1994 is excluding Rs. 5 crores deposited as redemption fine the year 1982-83 with the customs authorities against import of goods. This matter was contested in the court of law and now the matter has been decided finally against the company, during this year. The total of such item-wise details of purchases of various raw materials in the said schedule comes to Rs. 3,96,72,100/95. However, in the profit and loss account the amount of purchases has been shown at Rs. 8,96,72,100/95 by including the said sum of Rs. 5 crores, being the amount of redemption fine. Thus the amount of Rs. 5 crores representing redemption fine paid in the year 1982-83 has been debited in the profit and loss account by including the said sum in purchases for the year ended on 31-3-1994. The ld. counsel submitted that since the judgment of the Hon'ble SC was delivered on 14-7-1993 against the assessee, the said liability became final in the year under consideration and was rightly allowed by the A.O. as a deduction.

4.8. The ld. counsel also submitted that the assessee submitted letters dated 20-2-1997 and 10-3-1997 before the ld. CIT in response to his notice under section 263. The entire relevant facts, details and documents were furnished before him. The assessee also brought to the notice of the Id. CIT a judgment of the Hon'ble Madras High Court in the case of CIT v. N. M. Parthasarathy [1995] 212 ITR 105. That case also relate to allowability of redemption fine paid under section 125 of the Customs Act. It has been held by the Hon'ble Madras High Court that such a payment was compensatory in nature and is deductible under section 37 of the Act. Reliance was also placed on various other judgments in the written submissions submitted before the CIT. The ld.counsel also invited our attention towards letter dated 17-3-1997 submitted to the CIT in which detailed explanations were submitted before him to prove the non-applicability of the case of CIT v. Piara Singh [1980] 124 ITR 40/3 Taxman 67 (SC). The attention of the ld. CIT was also specifically invited towards the judgment in N. M.Parthasarathy's case, judgment of Hon'ble SC in the case of CIT v.Ahmedabad Cotton Mfg. Co. Ltd [1994] 205 ITR 163 [1993] 71 Taxman 56.

The ld. counsel also placed reliance on the judgment in Prakash Cotton Mills (P.) Ltd v. CIT [1993] 201 ITR 684/67 Taxman 684 (SC).

4.9. The ld. counsel invited our attention towards the first show-cause notice under section 263 dated 6th January in which the amount of Rs. 5 crores claimed as redemption fine was proposed to be disallowed in view of the judgment of Hon'ble SC in the case of Piara Singh (supra). The ld. counsel submitted that the ratio of the said judgment does not in any manner support the conclusions arrived at by the CIT. In that case, the amount of illegal expenditure claimed against income from illegal business was held to be allowable as deduction. The ld. counsel submitted that the facts of that case are entirely different and even if it is held to be applicable to the facts of the assessee's case, it should be treated that the unlawful import of the goods in question resulted in levy of redemption fine, which should be allowed as a deduction in view of the said judgment. He further invited our attention towards the second show-cause notice dated 27th February 1997. In this show-cause notice, the A.O. has mentioned that the amount of Rs. 5 crores has been charged to profit and loss account in Assessment Year 1994-95. Since it is a fine slapped by the Customs department and the fine has been confirmed by the courts of law, the deduction claimed during the Assessment Year 1994-95 will not be allowed. There are a number of Court's decisions in favour of the revenue. This issue has not been considered by the A.O. in the original order passed under section 143(3), therefore the assessment order is erroneous and prejudicial to the interest of the revenue. The ld.counsel invited our attention towards the elaborate replies submitted in response to the aforesaid show-cause notices with a view to convince that the assessment order cannot be treated as erroneous and prejudicial. He submitted that the assessee placed reliance on the following judgments which were delivered on the under mentioned dates : He submitted that the aforesaid judgments which were available till the date of filing of the return by the assessee clearly supports the assessee's claim. Therefore the order of the A.O. cannot be treated as erroneous and prejudicial to the interest of the revenue.

4.10 The ld. counsel submitted that he assumption of jurisdiction by the CIT under section 263 is entirely invalid in view of the judgments in Venkatakrishna Rice Co. v. CIT [1987] 163 ITR 129/30 Taxman 528 (Mad.), Malabar Industrial Co. Ltd v. CIT [1992] 198 ITR 611 (Ker.) and CIT v. O. P. Seth [1993] 201 ITR 635168 Taxman 14 (Delhi). The Id.

counsel also placed reliance on the judgment of Hon'ble SC in CITY. S.C. Kothari [1971] 82 ITR 794 and judgment of Hon'ble Bombay High Court in CIT v. Gabriel India Ltd. [1993] 203 ITR 108 to support his contention that the order passed by the CIT under section 263 in relation to the aforesaid point is patently wrong.

5. As regards various other issues, the ld. counsel submitted that the CIT has directed the A.O. to re-examine all those points after providing reasonable opportunity to the assessee. The assessee aid submitted elaborate facts and submissions before the CIT in the various letters submitted before him. For instances, he submitted that as regards the mistake pointed out in relation to redemption fine of Rs. 10 lakhs and penalty of Rs. 1 lakh imposed by the Customs authority in import of stainless steel, it was pointed out that the said expenditure had not at all been claimed as a deduction in the profit and loss account. The question of its disallowance therefore does not arise. The ld. counsel however submitted that he would not like to seriously contest the order of the CIT in respect of all other items except the item relating to deduction of Rs. 5 crores being the amount of redemption fine as all other items have been restored back to the A.O.for fresh consideration after providing reasonable opportunity to the assessee.

6. At this stage, the Bench required the ld. counsel to state as to whether the deduction of Rs. 5 crores relating to redemption fine, would attract section 43B of Income Tax Act, 1961 or not In reply to the aforesaid query, the ld. counsel for the assessee submitted that the Tribunal cannot sustain the order of the CIT on the basis of new and altered ground, which was not adopted by the CIT. He submitted that the CIT has not invoked the provisions of section 43B. The Tribunal cannot therefore sustain the finding of the CIT by invoking the provisions of section 43B of the Act. He placed reliance on judgment in CIT v. Jagadhri Electric Supply &Industrial Co. (1983] 140 ITR 490/[1981] 7 Taxman 56 (Punj. & Har.) and (CIT v. L. F. D'Silva [1991] 192 ITR 547 (Kar.) to support this contention. Without prejudice to this contention, the ld. counsel for the assessee invited our attention towards the judgment of the Hon'ble SC in the case of Union of India v.Security & Finance (P.) Ltd. AIR 1975 SC 2288. In para 11 of the said judgment, it was held that under section 183 of the Sea Customs Act, 1878 does not preclude the collector of customs from levying the duty under section 20. The obligation under section 20 is independent of liability under section 183. The penalty in lieu of confiscation under section 183 and further directing the payment of import duty was held to be valid. The said judgment draws a clear distinction between "duty' and 'fine' or penalty'. The redemption fine paid by the assessee cannot be considered as tax or duty within the meaning of section 43B. He also placed reliance on judgment of Hon'ble Madras High Court of the Collector of Customs v. H. S. Mehra AIR 1964 Mad. 504. In this case, it was held that penalty imposed under section 183 of Sea Customs Act cannot be deemed to include the duty as well. He further invited our attention towards the provisions of section 183 of the Sea Customs Act.

A photocopy of pages 349 and 350 of some commentary was also submitted in which it has been observed that section 183 of Sea Customs Act of 1878 is similar to the provisions of section 125 of the Customs Act, 1962. These provisions show that the only penalty which, in law, the Officer can impose is one of confiscation. Having done that he gives an option to the owners to pay a fine in lieu of confiscation. The redemption fine cannot therefore be treated as a penalty for infraction of the provisions of law but it is a payment of a compensatory nature.

6.1 The ld. counsel further submitted that the Hon'ble SC in the judgment in Ahmedabad Cotton Mfg. Co. Ltd.'s case (supra) has approved the judgment of Hon'ble Gujarat High Court in Addl CIT v. Rustam Jehangir Vakil Mills Ltd. [1976] 103 ITR 298 and CIT v. Tarun Commercial Mills Co. Ltd. [1977] 107 ITR 172. He particularly invited our attention towards the Hon'ble Gujarat High Court judgment in Rustam Jehangir Yakil Mills Ltd' scale (supra) at page 309 wherein it has been observed that where the claim is that the law itself gives an option to the producer concern to adopt one of the three courses and if he complies with the law by choosing one of the three options offered to him, he cannot be said to commit any infraction of law. Hence, there is no question of any amount paid as penalty or any amount paid being a kin to penalty as the case before the Madras High Court in the Coffee Board case. Likewise, he drew our particular attention to the judgment of Hon'ble Gujarat High Court in Tarun Commercial Mills Co. Ltd's case (supra) at page 181. In view of the aforesaid facts and decisions, the ld. counsel strongly urged that the order of the CIT in relation to redemption fine of Rs. 5 crores is patently invalid and unjustified.

6.2 The ld. counsel then submitted that the CIT has erred in directing the A.O. to enhance the income by the said sum of Rs. 5 crores and has further erred in directing the A.O. to initiate penalty proceedings under section 271(1)(c) in respect of aforesaid enhancement of income.

The ld. counsel submitted that the directions given by the CIT to initiate penalty proceedings under section 271(1)(c) is clearly contrary to the provisions of law and the same is beyond the scope of powers of the CIT under section 263. He placed reliance on judgment in Addl CIT v. J. K. D'Costa [1982] 133 ITR 7/9 Taxman 88 (Delhi), CWT v.A. N. Sarvaria [1986] 161 ITR 694 (Delhi), Addl CIT v. Sudershan Talkies [1993] 200 ITR 153 (Delhi) and CIT v. Sudershan Talkies [1993] 201 ITR 289 (Delhi). The CIT could not direct the A.O. to initiate penalty proceedings under section 271(1)(c).

7. Shri S. K. Jain, the ld. departmental representative strongly supported the order of the CIT. He submitted that the return of income declaring loss of Rs. 9,02,41,943 was filed by the assessee on 30-11-1994 and the assessment under section 143(3) was passed on 16-2-1995 at loss of Rs. 9,01,61,943 almost at the same figure of loss as was declared by the assessee. The order passed by the A.O. does not contain any discussion relating to any of the items claimed by the assessee. He has simply observed that the assessee deals in business of importers/exporters. After discussion, the net income/loss has been computed at pages 2 and 3 of the assessment order. He has simply disallowed Rs. 80,000 out of entertainment expenses other than the expenses which are specifically disallowable under the various provisions such as under section 43B, guest house expenses, travelling expenses as per rule 6D, etc. This clearly shows that the order was passed without application of mind by the A.O. The audited statement contained a specific note relating to the said sum of Rs. 5 crores representing redemption fine which was included in the purchases debited in the P&L Account. In spite of such a specific note, the A.O.did not make any enquiries in relation to the allowability of such a deduction. He submitted that an order made without conducting necessary enquiries and investigations is an order which can be regarded as erroneous and prejudicial to the interest of the revenue. He placed reliance on judgment in Gee Yee Enterprises v. Addl. CIT [1975] 99 ITR 375 (Delhi), Malabar Industrial Co. Ltd's case, CIT v. Emery Stone M/s.

Co. [1995] 213 ITR 843/83 Taxman 643 (Raj.) and CIT v. M. M.Khambhatwala [1992] 198 ITR 144 (Guj.). The ld. DR submitted that the CIT was right in assuming jurisdiction tinder section 263 on the facts of the present case.

8. On merits relating to the assessee's claim for deduction of redemption fine of Rs. 5 crores, the ld. DR submitted that the amount in question was paid in the year 1982-83. A fine or penalty paid for violation of law is not allowable as a business expenditure under section 37 of I.T. Act, 1961. He submitted that section 125 of the Customs Act, 1962 comes into play only when the confiscation of any goods is authorised under the provisions of the said Act. Section 111(d) provides that any goods which are imported or attempted to be imported or are brought within the Indian Customs Waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force is liable to confiscation. In the present case, it has been finally held by the Hon'ble SC that the assessee had imported the goods in clear violation of the provisions of the Act and the relevant notification issued under the said Act. The redemption fine has been levied on the assessee for infraction of law. This is clearly in the nature of penalty and the same by no stretch of imagination be treated as a payment of compensatory nature. He also drew our attention towards the copies of pages 349 and 350 of the commentary on Customs Act, 1962 submitted by the assessee's counsel in which the authors have clearly observed that, the provisions of section 125 of the Customs Act, 1962 shows that penalty which in law the officer can impose is one of confiscation.

Having done that, an option to the owner to pay a fine in lieu of confiscation is given. Therefore the redemption fine paid by the assessee as per section 125 of the said Act is clearly in the nature of penalty which is not allowable deduction under the provision of I.T.Act.

8.1 Shri S. K. Jain, the ld. DR further submitted that this matter had travelled up to the Hon'ble SC at page 11 of the judgment dated 14-7-1993. The Hon'ble SC has observed that the only point which remains for consideration is whether the importer had acted bona Aide, in that they had in good faith assumed that the non-edible variety of coconut oil was not a canalized item and could, therefore, be imported under open general licence (OGL). The Hon'ble SC after consideration of the entire relevant facts and material gave its categorical findings at page 20 of the said judgment that the action of the assessee in importing the goods under OGL was not bona fide. It is, therefore, clear that the Hon'ble SC has given a clear categorical finding that the action on the part of the assessee of importing the goods under OGL was not a bona fide act and therefore the guilty intention on the part of the assessee stands established as a result of the final verdict given by the Hon'ble SC. The redemption fine paid by the assessee for violation of the relevant provisions of the Customs Act, 1962 is therefore clearly in the nature of penalty which has been confirmed by the Hon'ble SC on account of non-bona lied conduct of the assessee.

8.2 The ld. DR submitted that the facts of the judgment of Hon'ble Madras High Court N. M. Parthasarathy's case (supra) are clearly distinguishable. In that case, the redemption fine levied by the adjudicating authorities was substantially waived by the higher authorities in view of the bona fide action on the part of the importer. In the present case, the Hon'ble SC has given a firm finding that the import of the goods in question by the assessee under OGL was not a bona fide Act. This vital distinguishing feature clearly hours that the judgment of Hon'ble Madras High Court cannot be applied to the facts of the present case.

8.3 The ld. DR further contended that the judgment of the Hon'ble SC in the case of Ahmedabad Cotton Mfg. Co. Ltd (supra) is also not applicable to the facts of the assessee's case as the facts of that case are clearly distinguishable. That decision relates to consideration of certain directions issued under Cotton Textiles (Control) Order, 1948. The assessee in that case could not comply with certain directions issued under the said control order and therefore had to pay compensation to the Textile Commissioner in exercise of its option available under the terms of the Bond. The payment in that case was made because of non-compliance of certain directions under the Control Order and in accordance with the option available under the terms of the Bond executed by the assessee. Such a payment cannot be treated as a payment in the nature of penalty for violation of provisions of law. It was therefore held by the Hon'ble SC that such a payment made by the assessee in exercise of the option conferred upon him was allowable under section 37 as an incident of the business laid out and expanded wholly and exclusively for the purpose of the business. The facts of the present case are clearly distinguishable.

8.4. The ld. DR further submitted that the judgment of Hon'le SC in Prakash Cotton Mills (P.) Ltd.'s case (supra) is also clearly distinguishable. In that case, the question related to allowability of interest for delayed payment of ST under the Bombay ST Act, 1959 and damages paid under the Employee State Insurance Act, 1948 for delayed payment of contribution. The Hon'ble SC held in that case that where the statutory impost paid by an assessee by way of damages and penalty or interest is claimed as an allowable expenditure under section 37(1) of I.T. Act 196 1, the assessing authority is required to examine the scheme of the provisions of the relevant statute providing for payment of such impost notwithstanding the nomenclature of the impost as given by the statute to find whether it is compensatory or penal in nature.

There is no quarrel about the legal principles laid down by the Hon'ble SC in that case. One will have to examine the nature of the redemption fine in the light of the provisions of the Customs Act, 1962 with a view to find out whether it is penal in nature or compensatory in nature. He submitted that the redemption fine paid by the assessee for illegal import of goods liable to confiscation is clearly penal in nature. It cannot be treated as compensatory because it is not a case where the assessee had used the Government's due for which any compensation was required to be paid by him. It is a case where the goods illegally imported by the assessee were confiscated under the provisions of the Customs Act and an option was given under section 125 of the Act for payment of redemption fine in lieu of such confiscation.

It is therefore clearly a payment in the nature of penalty for violation of the provisions of the Customs Act, 1962.

9. The ld. DR placed reliance on the Hon'ble High Court of Bombay's judgment in the case of T. Khemchand Tejoomal v. CIT [1986] 161 ITR 492/27 Taxman 72 in which the penalty paid to the Customs Authorities in respect of goods imported by the assessee was disallowed.

10. The ld. DR also placed reliance on the judgment of the Hon'ble SC in the case of Piara Singh (supra). He submitted that the Hon'ble SC relied upon the judgment of the Hon'ble Apex Court in the case of Haji Aziz & Abdul Shakoor Bros v. CIT [1961] 41 ITR 350. The judgment in the case of Haji Aziz clearly supports the view taken by the CIT in the impugned order.

11. The ld. DR submitted that the assessee has raised an alternative plea before the CIT which has been discussed at page 7 of the order passed by him. It was submitted that the deduction in respect of the redemption fine is allowable in view of the judgment of the Hon'ble SC in the case of Piara Singh. The ld. DR submitted that the Hon'ble SC has not held that if the assessee is carrying on a lawful business, any amount paid for violation of the provisions of law such as the redemption fine paid for illegal import of goods would be a allowable deduction.

12. The ld. DR placed reliance on the judgment of Hon'ble Bombay High Court in the case of Rohit Pulp Paper Mills Ltd. v. CIT [1995] 215 ITR 919/79 Taxman 168. In that case, the goods imported by the assessee were found by the Customs Authorities to be not covered by the valid licence, which is an offence under section 111(d) of the Customs Act r/w section 3 of the Import and Exports (Control) Act, 1947. The DC of Customs ordered confiscation of goods under the above provisions and gave an option to the assessee under section 125 of the Customs Act to pay in lieu of confiscation a fine of Rs. 35,000. It was held by the Bombay High Court that the above amount paid by the assessee was nothing but penalty and was therefore not allowable as deduction under the Act. Shri Jain, the ld. DR contended that this judgment squarely applies to the facts of this case. The amount paid by the assessee was a fine under the same section 125 of the Customs Act. The Hon'ble Bombay High Court has held that such fine paid in lieu of confiscation was penalty and the same is not allowable as deduction.

14. As regards the directions given by the CIT to initiate penalty proceedings under section 271(1)(c), the ld. DR simply relied on the observations made by the CIT in the impugned order.

15. In the rejoinder, the ld. counsel for the assessee submitted that the judgment of the Hon'ble Bombay High Court in the case of Rohit Pulp & Paper Mills Ltd. (supra) was delivered on 10-11-1994 while the judgment of Hon'ble Madras High Court in N. M. Parthasarathy's case (supra) was delivered on 29-4-1994. The judgment of the Hon'ble Bombay High Court was not available with the assessee at the time when the return of loss was filed. He submitted that the facts of the present case clearly reveal that there was difference of opinion between the technical member and the Judicial Member of the excise Tribunal. The Full Bench of CEGAT decided the issue against the assessee on 5-12-1986. The Hon'ble SC set aside the order of the Tribunal vide judgment dated 23-1-1990. It was only after a review petition was filed by the Excise department that the SC finally passed an order on 14-7-1993 against the assessee. The assessee was under a bona fide belief that the import of the goods under OGL was rightly made. Such a bona fide belief of the assessee is further fortified by the different view taken by the Members of the Excise Tribunal and the two separate and contrary judgments given by the Hon'ble SC, as referred to above.

15.1 The ld. counsel further submitted that there are only two direct judgments in relation to allowability of redemption fine paid under section 125 of the Customs Act. The Hon'ble Madras High Court has held that it is compensatory in nature and is allowable as a deduction as for, judgment in N. M. Parthasarathy's case (supra). The Hon'ble Bombay High Court has taken a contrary view in the case of Rohit Pulp & Paper Mills Ltd. (supra). Even if two views are possible, the CIT could not finally conclude that the order of the A.O. allowing such deduction of Rs. 5 crores was erroneous and prejudicial to the interest of the revenue. The judgment of the Hon'ble Madras High Court was brought to the notice of the CIT. The CIT has not referred to the judgment of the Hon'ble Bombay High Court in the case of Rohit Pulp & Paper Mills Ltd (supra), The CIT therefore ought to have followed the judgment of Madras High Court.

16. We have carefully considered the rival submissions made by the ld.representatives of the parties and have gone through the orders of the ld. departmental authorities. We have also gone through the judgments rendered by the Hon'ble CEGAT (Excise Tribunal), the Hon'ble High Court and the Hon'ble SC relating to the levy of redemption fine of Rs. 5 crores in the case of the assessee. We have also carefully gone through all other documents to which our attention was drawn during the course of hearing. We have also given our deep and thoughtful consideration's the various judgments cited by the learned representatives of both sides.

17. In order to appreciate the true nature of redemption fine paid in accordance with section 125 of Customs Act, 1962, it will he relevant to reproduce the relevant provision of the said Act. Section 111(d) : "Confiscation of improperly imported goods, etc. - The following goods brought from a place outside India shall be liable to confiscation : (a) any goods which are imported or attempted to be imported or are brought within the Indian Customs Waters for the purpose of being imported, contrary to any prohibition imposed by or under the Act or any other law for the time being in force." "Option to pay the line in lieu of confiscation. - (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods (or, where such owner is not known, the person from whose possession or custody such goods have been seized) an option to pay in lieu of confiscation such fine as the said officer thinks fit : Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon." "Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods." The Hon'ble Madras High Court in the case of N. M. Parthasarathy (supra) has held as under : "In view of the decisions in the cases of Prakash Cotton Mills (P.) Ltd. v. CIT [1993] 201 ITR 684 (SC) and CIT v. Ahmedabad Cotton Mfg.

Co. Ltd. [1994] 205 ITR 163 (SC), the rule laid down in the case of Haji Aziz and Abdul Shakoor Bros. v. CIT [1961] 41 ITR 350 (SC) cannot be stated to have laid down an inflexible rule of law to be followed in all eventualities and situations with regard to deductibility of fines and penalties. In the case of CIT v. Ahmedabad Cotton Mfg. Co. Ltd [1993] 205 ITR 163. The Supreme Court held that what needs to be done by an assessing authority under the Income-tax Act, 1961, in examining the claim of the assessee that the payment made by such assessee was a deductible expenditure under section 37 although called a penalty is to see whether the law or scheme under which the amount was paid required such payment to be made, as penalty or as something akin to penalty, that is imposed by way of punishment for breach or infraction of the law or the statutory scheme. If the amount so paid is found to be not a penalty or something akin to penalty due to the fact that the amount paid by the assessee was in exercise of the option conferred upon him under the very law or scheme concerned, then one has to regard such payment as business expenditure of the assessee, allowable under section 37 as an incident of business laid out and expended wholly and exclusively for the purposes of the business.

Held, that, in the instant case, the goods belonging to the assessee had been confiscated under section 111(d) of the Customs Act, 1962, read with section 3 of the Imports and Exports (Control) Act, 1947.

However, under section 125 of the Custom Act, 1962, an option had been given to the owner-assessee to pay, in lieu of such confiscation, a fine of Rs. 1,84,000 which had been reduced on appeal to Rs. 84,000 and the goods had been cleared exercising the option. The fine could not, in such a situation, be stated to be penal in nature notwithstanding its nomenclature, it was compensatory and as such deductible under section 37 of the Act.

The aforesaid judgment supports the assessee's contention. However, the Hon'ble Bombay High Court in the case of Rohit Pulp & Paper Mills Ltd. (supra) has taken a contrary view in relation to allowability of redemption fine paid in accordance with the section 125 of Customs Act, 1962. The Head Note of the said judgment is also reproduced hereunder : "That the Deputy Collector of Customs had ordered confiscation of goods under section 111(d) of the Customs Act read with section 3 of the Imports and Exports (Control) Order. He gave an option to the assessee under section 125 of the Customs Act to pay in lieu of confiscation, a fine of Rs. 35,000. This payment was in the nature of penalty. It was not allowable as a deduction under section 37 of the Act." 18. The Hon'ble SC in the case of Prakash Cotton Mills (P.) Ltd. (supra) held that whenever any statutory impost paid by an assessee by way of damages or penalty or interest is claimed as an allowable expenditure under section 37(1) of the Income-tax Act, the assessing authority is required to examine the scheme of the provisions of the relevant statute providing for payment of such impost notwithstanding the nomenclature of the impost as given by the statute, to find whether it is compensatory or penal in nature. Similar view was expressed by the Hon'ble SC in the case of Standard Batteries v. CIT (1995) 211 ITR 444/75 Taxman 333.

18.1 The judgment of Hon'ble SC in the case of Ahmedabad Cotton Mfg.

Co. Ltd. (supra) relied upon by the ld. counsel for the assessee related to deduction of payment made by the assessee to the Textiles Commissioner in exercise of its option available under the terms of the Bond and in accordance with the directions issued under the Cotton Textiles (Control) Order, 1948. The nature of payment in that case cannot automatically be considered as similar to that of redemption fine paid by the assessee under the provisions of Customs Act.

18.2 We therefore have to examine the nature and scope of the redemption fine paid in accordance with section 125 of the Customs Act, 1962. Section 125 of the Customs Act empower the Adjudicating Officer to give to the owner of the goods an option to pay in lieu of confiscation such fine "as the said officer thinks fit". The expression used in the said section is not "as the said officer likes". It is therefore clear from the aforesaid provisions that the amount of fine to be levied in lieu of confiscation of goods illegally imported by the importer has to be fit in accordance with the facts and circumstances of the case and should be just and reasonable. The quantum of redemption fine imposed by the Adjudicating Officer has therefore to be determined in a judicious manner after taking into consideration the entire relevant facts and circumstances of each case. The only limiting factor under section 125 is that such fine shall not exceed the market price if the goods confiscated. No amount of minimum fine has been prescribed in the said provision. The quantum of redemption fine imposed by the Adjudicating Officer is open to scrutiny and in appropriate cases, modification and even complete cancellation by the higher authorities in the quasi-judicial hierarchy, if the facts and circumstances of the case so warrant.

18.3 In order to appreciate as to whether a particular statutory impost is penal or compensatory in nature, a useful reference may also be made to the judgment of the Hon'ble Gujarat High Court in the case Orient Trading Co. v. CIT. Ordinarily mandatory interest charged by the revenue for non-payment of outstanding tax in compensation paid by the assessee to the State for use of Government's dues at the specified rate and for the period during which such amount has been used by the assessee. The Hon'ble Gujarat High Court considered the nature of payment made by the assessee under section 45(5) of Gujarat Sales Tax Act. The said provision requires the assessee to pay tax within the specified time. For non-payment or delayed payment of tax without reasonable cause, the assessee has to pay by way of penalty, in addition to the amount of tax, a sum equal to 1% of the amount of tax per month for the first three months after the last date, by which he should have paid the tax and at the rate 1.1/2% per month for the subsequent period of default in the payment of tax. The Commissioner has been empowered to remit whole or any part of the said amount of penalty payable under section 45(5) of such conditions as may be prescribed. The Hon'ble Gujarat High Court held that the use of words "reasonable cause" in sub-section (5) would he inconsistent if the Legislature really intended payment under that section as compensatory interest. If it was intended as a compensation for loss of use of money, one would not have found the words "without reasonable cause" in the said section and even if there is "reasonable cause", the loss or deprivation we still be there. Interest by way of compensation would be payable irrespective of any cause, because, whatever be the cause, in such cases, the assessee retains the amount which he ought to have paid to the State and, thus, the State is deprived of the use of that money.

Therefore, making payment depending upon reasonable cause and giving power to the Commissioner to remit whole or any part of penalty are clearly indicative of the true nature of 'payment contemplated by that section. Considering the scheme of the provisions, it becomes clear that payment intended under that sub-section is really by way of penalty and not by way of interest of compensatory nature. The deduction claimed by the assessee was denied as being a payment made for infraction of law and was not allowed.

18.4 The redemption fine levied under section 125 in lieu of confiscation of goods illegally imported by the assessee is also punitive or penal in nature. It cannot be treated as compensatory in nature on account of the fact that the State does not recover the said amount by way of any compensation such as mandatory interest charged under various fiscal statute for delayed payment of outstanding tax or duty. The provisions of section 125 confer a discretion upon the adjudicating authority to levy such fine as he thinks fit. The quantum of redemption fine to be levied by the Adjudicating Officer has to be just and reasonable depending on the facts and circumstances of each case. Such a fine is further open to scrutiny by the higher appellate authorities by the Courts of law. The said provisions was introduced in the Customs Act to operate as a disincentive for illegal import of the goods. This provision operates as a deterrent provision and is meant for making evasion expensive. The said provision is therefore clearly of a penal nature.

18.5 The Hon'ble Madras High Court in the case of N. M. Parthasarathy (supra), which was heavily relied upon by the ld. counsel for the assessee also considered various judgment including the judgment of the Hon'ble Supreme Court in the case of Haji Aziz & Abdul Shakoor Bros.

(supra). At page 115 the Hon'ble Madras High Court after quoting me extracts or me said judgment of the Hon'ble Supreme Court observed as under :- "So rigid a view, the Apex Court took on the subject as above, held the field fairly long and, in fact, various High Courts implicitly followed the rule so laid down. A new dimension and complexion had been given to such a moot and vexed question by the Apex Court in the case of Prakash Cotton Mills (P.) Ltd v. CIT [1993] 201 ITR 18.6 We have already referred to the judgment of the Hon'ble SC in the case of Prakash Cotton Mills (P.) Ltd (supra). The Hon'ble SC in that case has specifically held that the Assessing Officer is required to examine the scheme of the provisions of the relevant statute providing for payment of such impost notwithstanding the nomenclature of the impost as given by the statute, to find whether it is compensatory or penal in nature. This judgment of the Hon'ble SC in the case of Prakash Cotton Mills (P.) Ltd (supra) cannot be automatically be applied for holding that redemption fine levied under section 125 of the Customs Act, 1962 is compensatory in nature. We have examined the scheme of the provisions contained in the Customs Act, 1962 and have arrived at the conclusion that such redemption fine cannot be treated as compensatory in nature but it is a punitive measure and the levy is clearly penal in nature. With our utmost respects for the Hon'ble Madras High Court, we prefer to follow the view taken by the Hon'ble Bombay High Court in the case of Rohit Pulp & Paper Mills Ltd. (supra).

18.7 The reason for our preferring to follow the judgment of Hon'ble Bombay High Court is that the said judgment is in conformity with the view taken by the Hon'ble SC in the case of Haji Aziz & Abdul Shakoor Bros. (supra). The facts of the said judgment delivered by the Hon'ble SC are briefly as under. The appellant-firm in that case was doing the business of importing dates from abroad and selling them in India.

During the accounting-year relevant to A.Y. 1949-50, the appellant imported dates from Iraq. It the relevant time, the import of dates by steamers was prohibited by two notifications dated 12-12-46 and 4-6-47, but they were permitted to be brought by Country Craft. Goods which have been ordered by the appellant were received partly by steamer and partly by Country Craft. Consignments which were imported by steamer and were valued at Rs. 5 lakhs were confiscated by the Customs authorities under section 167, item 8 of the Sea Customs Act, but under section 183 of Sea Customs Act, the appellant was given an option to pay fine aggregating to Rs. 1,63,950 which sum on appeal was reduced to Rs. 82,250. This sum was paid and the dates were released. The ITO disallowed the assessee's claim for deduction of the said sum of Rs. 82,250 paid by way of fine under section 183 of the Sea Customs Act.

The Hon'ble SC held as under :- "Held that no expense which was paid by way of penalty for a breach of the law, even though it might involve no personal liability, could be said to be an amount wholly and exclusively laid for the purpose of the business of the assessee within the meaning of section 10(2)(xv) of the Income-tax Act and the fine paid by the assessee was not an allowable deduction under that section.

Expenses which are permitted as deductions are such as are made for the purpose of carrying on the business, i.e., to enable a person to carry on and earn profit in that business. It is not enough that the disbursements are made in the course of or arise out of or are concerned with or made out of the profits of the business but they must also be for the purpose of earning the profits of the business.

They cannot be deducted if they fall on the assessee in some character other than that of that of a trader. An expenditure is not deductible unless it is a commercial loss in trade and a penalty imposed for breach of the law during the course of trade cannot be described as such. If a sum is paid by an assessee conducting his business, because in conducting it he has acted in a manner which has rendered in liable to penalty for an infraction of the law, it cannot be claimed as a deductible expense, as it cannot be called a commercial loss incurred in carrying on his business. Infraction of the law is not a normal incident of business." 19. It will be worthwhile to repeat that the ld. counsel for the assessee himself submitted that the provisions of section 183 of the Sea Customs Act is similar to that of section 125 of the present Act.

The judgment of the Hon'ble SC in the case of Haji Aziz & Abdul Shakoor Bros. (supra) relates to confirmation of disallowance of the amount of fine levied for similar infraction of an identical provision of law.

The view taken by the CIT in the impugned order under section 263 disallowing the deduction of said sum of Rs. 5 crones is therefore fully supported by the aforesaid judgment of the Hon'ble SC and the judgment of the Hon'ble Bombay High Court.

20. It may be imperative to make a useful reference to the recent judgment of the Hon'ble SC in the case of Maddi Venkataraman & Co. (P.) Ltd. v. CIT [1998] 96 Taxman 643 wherein the ratio or the earlier judgment of the Hon'ble SC in the case of Haji Aziz & Abdul Shakoor Bros. (supra) has once again been applied by the Hon'ble SC. It may be worthwhile to reproduce the para 4 of the said judgments :- "The High Court referred to a large number of decisions where it has been held that payments tainted with illegality cannot be claimed as deduction under the IT Act. Moreover if an assessee is penalised under one Act, he cannot claim that amount to be set off against his income under another Act because that will be frustrating the entire object of imposition of penalty.

One exception to this Rule which has been recognised by the Courts is where the entire business of the assessee is illegal and that income is sought to be taxed by the ITO then the expenditure incurred in the illegal activities will also have to be allowed as deduction. But if the business is otherwise lawful and the assessee resorts to unlawful means to augment his profits or reduce his loss, then the expenditure incurred for these unlawful activities cannot be allowed to be deducted. Even if the assessee had to pay fine or penalty because of an inadvertent infraction of law which did not involve any moral obliquity, the result will be the same. Even in such cases, the deduction will not be permitted of the amounts paid as penalty or fine of the value of the goods confiscated by the statutory authority as expenditure wholly and exclusively incurred for the purposes of carrying on the trade. It has been consistently held by the English Courts that fines or penalties payable for violation of law cannot be permitted as deduction under the IT Act.

That will be against public policy. Even though the need for making such payments arose out of trading operations the payments were not wholly and exclusively for the purpose of the trade. One can carry on his trade without violating the law. In fact, section 37 presumes that the trade will be carried on lawfully." 20.1 The ld. counsel for the assessee made an alternative submission that in view of the judgment of the Hon'ble SC in the cases of Piara Singh (supra) and S. C. Kothari (supra). The loss suffered by way of redemption fine should be allowed as a deduction as the profit on sale of the imported goods in question has been subjected to tax. This argument is not sustainable and has been fully answered by the Hon'ble SC in the above referred judgment in the case of Maddi Venkataraman & Co. (P.) Ltd. (supra). In these two cases, the losses suffered while carrying on illegal business was held to be allowable as a deduction.

The Hon'ble SC in the case of Maddi Venkataraman & Co. (P.) Ltd (supra) has held that where the entire business of the assessee is illegal and that income is sought to be taxed by the ITO, then the expenditure incurred in the illegal activities will also have to be allowed as deduction. But if the business is otherwise lawful and the assessee resorts to unlawful means to augment his profits or reduce his loss then the expenditure incurred for these unlawful activities cannot be allowed to be deducted. Even a fine for an inadvertent infraction of law which did not involve any moral obliquity, the result will be the same and such a fine will not be permitted to be allowed as deduction.

21. In view of the aforesaid facts and discussion and judgments, we are of the considered view that the Commissioner of Income-tax had rightly disallowed the said sum of Rs. 5 crores being the amount of redemption fine claimed as deduction by the assessee. The view taken by the CIT is confirmed.

22. Since we have confirmed the disallowance of the said redemption fine of Rs. 5 crores, as held by the CIT, we do not consider it necessary to go into the question of applicability of section 43B of IT Act, 1961 and also the powers of the Tribunal to sustain the findings given by the CIT on a ground different than on which the CIT had taken such a view.

23. It is apparent from the facts and discussions made in relation to disallowance of Rs. 5 crores that the order passed by the Assessing Officer, without making any enquiry in relation to the aforesaid point was clearly an order which was erroneous and prejudicial to the interest of the revenue. As regards the other items mentioned in para 2.3 of the order which have been restored by the CIT for fresh consideration by the A.O., the ld. counsel did not seriously contest those points. We are therefore of the view that the assessment order passed by the Assessing Officer without making proper enquiries was an order which was erroneous and prejudicial to the interest of the revenue.

24. The next submission made by the ld. counsel for the assessee was that the CIT while holding that the redemption fine of Rs. 5 crores paid by the assessee is clearly penal in nature on account of infraction of law and therefore is not allowable as business expenditure, has erred in directing the Assessing Officer to initiate penalty proceedings under section 271(1)(c). The ld. lawyer placed reliance on various judgments of the Hon'ble Delhi High Court. After going through the judgment of the Hon'ble Delhi High Court as cited on behalf of the assessee, we are of considered opinion that the CIT could not validly give any such directions to the Assessing Officer to initiate penalty proceedings under section 271(1)(c) of Income-tax Act, 1961. The Hon'ble Delhi High Court in the case of J. K. D'Costa (supra) had held that section 263 of Income-tax Act, 1961 refers to a particular proceeding that is being considered by the Commissioner and it is not possible, when the Commissioner is dealing with the assessment proceedings and the assessment order, to expand the scope of these proceedings which are being sought to be revised by the Commissioner. Proceedings for levy of a penalty under provisions of Income-tax Act are proceedings independent of and separate from the assessment proceedings. There is no identity between the two. An assessment cannot be said to be erroneous or prejudicial to the interest of the revenue because of the failure of the ITO to record his opinion about the leviability of the penalty in the case. The CIT could not therefore direct the Assessing Officer to initiate penalty proceedings under section 271(1)(c) in respect of the redemption fine of Rs. 5 crores disallowed by the CIT. The findings given by the CIT directing the Assessing Officer to initiate penalty proceedings under section 271(1)(c) is therefore quashed.

25. Before parting, we would like to express our feeling of appreciation for a very lucid presentation of his arguments by the ld.counsel Shri R. Ganesan. We would also like to express our feelings of admiration and appreciation for a very splendid presentation of his case by the ld. Departmental Representative Shri S. Y. Jain.

26. In the result, the order of the ld. CIT under section 263 in confirmed except in relation to the directions given by him to Assessing Officer to initiate penalty proceedings under section 271(1)(c), as indicated herein before.


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