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October, 06th 2014
+                  INCOME TAX APPEAL NO. 586/2014
                                     Date of decision: 11th September, 2014
                                                             ..... Appellant
                            Through Ms. Suruchi Aggarwal, Sr.Standing


                                                           ..... Respondent
                            Through Mr. Mayank Nagi & Mr. Tarun
                            Singh, Advocates.



        This appeal by the Revenue relates to Assessment Year 1992-93

and impugns order dated 4th March, 2014 passed by the Income Tax

Appellate Tribunal (Tribunal, for short) upholding the order passed

by the Commissioner of Income Tax (Appeals) deleting penalty of

Rs.44,42,839/- imposed by the Assessing Officer under Section 13 of

the Interest Tax Act, 1974 (Act, for short).

2.      The respondent-assessee, a Government of India undertaking,

was engaged in the business of general insurance during the period in

question.      Pursuant to the return filed by the respondent-assessee,

ITA No. 586/2014                                                 Page 1 of 16
assessment order dated 20th March, 1995 was passed under Section

8(2) of the Act computing chargeable interest at Rs.3,84,84,910/-.

Subsequently, notice under Section 10 of the Act dated 26th December,

1996 was issued and a return of chargeable interest of Rs.3,92,51,082/-

was filed on 30th January, 1997. By order dated 16th March, 1998, the

Assessing Officer added the following amounts to the chargeable


             1.        Interest on special deposits ­ Chargeable to
             tax, as it is intt. on deposit and it with RBI (Rs.
             10,08,64,111/-) is from RBI which is not a credit
             2. Interest on deposits with RBI (22,50,000) ­ Not
             interest on Loans & Advances ­ but on deposits` and
             hence chargeable to tax.
             3. Interest on loans to HUDCO (Rs.2,04,00,004/-) ­
             Not chargeable to tax, as it is a credit institution.
             4. Interest on loans to GIC Housing finance
             (Rs.34,50,000/-) ­ A credit institution. Not chargeable
             to tax.
             5. Interest from Banks- call money (Rs.2,13,17,614/-)
             ­ Interest is not on Loans & Advances` hence
             chargeable to tax.
             6. Interest from Banks ­ certificate deposit
             (Rs.31,18,884/-) ­
             7. Interest from Banks-Bills rediscounting scheme

3.      The aforesaid additions were made subject matter of challenge

before the appellate authorities, including the Tribunal. The Tribunal

by order dated 21st February, 2006 substantially deleted several

additions, but in respect of following two items restored the matter to

ITA No. 586/2014                                               Page 2 of 16
the Assessing Officer; (i) interest on call money with bank of

Rs.2,13,17,614/- and     (ii) interest on bills re-discounting scheme

Rs.8,74,28,576/-, i.e., total Rs.10,87,46,190/-. The remand order was

passed to determine the nature of interest.

4.      By order dated 14th December, 2006, the Assessing Officer

referred to definition of the term interest in Section 2(7) of the Act to

hold that the aforesaid amounts had to be treated as interest under the

said Section. He rejected the contention of the respondent-assessee

relying upon Section 2(5A)(1) of the Act. We shall be referring to the

said contention in detail subsequently. The aforesaid order dated 14th

December, 2006 has attained finality.

5.      The Assessing Officer thereafter initiated penalty proceedings

under Section 13 of the Act and by order dated 20 th June, 2007 penalty

of Rs.44,42,839/- was imposed in respect of the two additions. On

appeal, Commissioner of Income Tax (Appeals) vide order dated

31.8.2010, deleted the said penalty after referring to several facts,

which we shall notice below. The Tribunal has in its impugned order

affirmed the aforesaid finding.

6.      Learned Senior Standing Counsel for the Revenue has drawn our

attention to Section 2(7), which defines interest to mean interest on

loans and advances made in India and after amendment w.e.f. 1st Oct,

1991, it includes bills discounting. Section 2(7) of the Act, as amended

ITA No. 586/2014                                              Page 3 of 16
with effect from 1st Oct, 1991, reads as under:-

             2(7) interest means interest on loans and
             advances made in India and includes--

             (a) commitment charges on unutilised portion of any
             credit sanctioned for being availed of in India; and

             (b) discount on promissory notes and bills of
             exchange drawn or made in India,

             but does not include--

             (i) interest referred to in sub-section (1-B) of Section
             42 of the Reserve Bank of India Act, 1934 (2 of

             (ii) discount on treasury bills;

7.      Clause (b) is not omnibus but stipulates that that the discounting

on promissory notes and bills of exchange drawn or made in India

would be treated as interest on loans and advances for the purpose of

Section 2(7) of the Act. Thus, with effect from 1st Oct, 1991 there is

no doubt or ambiguity that bill discounting charges on promissory

notes or bills of exchange have to be included in the interest for the

purpose of tax payable under the Act. However, when the appeal had

come up for hearing yesterday, learned counsel for the respondent-

assessee, had submitted that the present case does not include interest

earned on discounting of promissory notes or bills of exchange. He

had referred to item No. 7 in the assessment order dated 16 th March,

1998 wherein the term used was interest from banks -bills re-

ITA No. 586/2014                                                   Page 4 of 16
discounting scheme. At the request of the counsel for the appellant -

Revenue, the appeal was adjourned to enable her to ascertain the

details and know the correct position.        Learned Senior Standing

Counsel has filed before us copy of returns filed under the Act on 31 st

December, 1992 and 30th January, 1997. She states that copy of the

scheme was probably not filed by the assessee during the course of the

assessment proceedings and is not available on the record.            It is

submitted that earlier similar contention was not raised.

8.      It is apparent from the assessment orders dated 16 th March, 1998

and 14th December, 2006 that the respondent-assessee had relied on

Section 2(5A)(1) to contest that interest under the Banks Bills

Rediscounting Scheme amounting to Rs.8,74,28,57/- cannot be

subjected to tax under Section 2(7) of the Act. The amount so stated

had accrued on transactions with the Reserve Bank of India. The

Assessing Officer disagreed, observing that for Section 2(5A)(1), to

apply, the transaction should be with a credit institution, which meant a

banking company to which Banking Regulation Act, 1994 applied.

However ,the Reserve Bank of India, was a statutory authority; the

Central Bank, constituted under a special enactment. The Reserve Bank

of India was/is neither a bank nor a banking company and hence cannot

be treated as a credit institution. In other words, the Assessing Officer

held that in case interest had been earned on the same transactions but

ITA No. 586/2014                                               Page 5 of 16
with the scheduled banks, it would have been exempt under Section

2(5A)(1) of the Act, but as the transactions were with the Central

Bank, i.e., Reserve Bank of India, the income or interest earned would

be taxable.

9.      The stand of the respondent-assessee, that under Section 2(7)

interest means interest on loans and advances and, therefore,

necessarily refers to commercial transactions entered into by the

assessee, was rejected. The submission, that the definition of interest

had been expanded to include discount on promissory notes and bills of

exchange, but it was not the legislative intention to tax interest earned

on transactions with Reserve Bank of India as they did not partake or

have a commercial character, was not accepted.

10.     The respondent-assessee may be wrong and may have

erroneously interpreted and relied upon Section 2(5A)(1) of the Act,

but their contention does not and cannot be treated per se without merit

or baseless. The question related to the definition of the term credit

institution and if scheduled banks are included therein, whether or not

Reserve Bank of India should be treated alike and similarly. The

respondent-assessee has filed before us a copy of the written

submissions filed before the Assessing Officer in this regard and the

relevant portion thereof reads as under:-

             The above provision clearly suggest that the

ITA No. 586/2014                                              Page 6 of 16
             intention of the legislature was to charge interest tax
             on interest accruing or arising on loans and advances
             which are in the nature of loans and advances. Since
             the interest of Rs.10,87,46,190.00 mentioned above
             is not interest on loans and advances, the same is not
             chargeable to tax under the Interest Tax Act, 1974.
             In fact, even the learned Assessing Officer, vide his
             assessment order dated 16.03.1998 specifically
             mentioned, inter alia, that the interest on the above
             mentioned two items are not on Loans &
             Advances, which concurs with our contention.

             Without prejudice to the above contention that the
             interest on call money with banks and interest on
             Bills Rediscounting Scheme are outside the scope of
             chargeability to interest tax, the addition of
             Rs.10,87,46,190.00 made on these two items by the
             learned Assessing Officer is specifically exempt
             from the scope of chargeable interest under section 5
             read with sub-section 5A of section 2 of the Interest
             Tax Act, 1974, which clearly excludes interest
             received from other credit institutions from the
             scope of Chargeable Interest. The exemption has
             not been allowed on these interest received from
             other credit institutions, holding that the exemption
             under Section 5 is available only on interest not
             being in the nature of loans & advances and the
             exemption is denied. Section 2(7) defines interest
             to be interest on loans and advances. Under the
             provisions of Section 5, if the scope of chargeable
             interest is interpreted to include interest on call
             money with banks and interest on Bills
             Rediscounting Scheme treating them to be interest
             on loans and advances, the exemption cannot be
             denied holding that the interest is not on loans and
             advances. It is humbly submitted that the above
             instructions of CBDT are not correct interpretation
             of the provisions of the Interest Tax Act, 1974. The
             exclusionary provision was omitted from the present
             version of the Interest Tax Act because the head
             Interest on Securities` itself had already been
             omitted from the Income Tax Act, as revised in
             1991. The purpose of omitting the exclusion clause

ITA No. 586/2014                                                  Page 7 of 16
             from the Interest Tax Act was to make it fall in line
             with the Income Tax Act and not to cover larger tax
             base than the earlier one.

11.     The Commissioner of Income Tax (Appeals) and the Tribunal

have also noted and referred to clarification made by Central Board of

Direct Taxes vide instruction No. 1923 dated 14th March, 1995

suggesting that interest on debentures, bonds, securities, etc. and

deposits should be also made subject matter of tax under the Act. The

said circular/instruction was issued after the original return was filed

on 31st December, 1992.

12.     Section 13 of the Act reads as under:-

                   Section 13 - Penalty for concealment of
                   chargeable interest

                   If the Assessing Officer or the Commissioner
                   (Appeals) in the course of any proceeding under
                   this Act, is satisfied that any person has concealed
                   the particulars of chargeable interest or has
                   furnished inaccurate particulars of such interest,
                   he may direct that such person shall pay by way
                   of penalty, in addition to any interest-tax payable
                   by him, a sum which shall not be less than, but
                   shall not exceed three times, the amount of
                   interest-tax sought to be evaded by reason of the
                   concealment of particulars of his chargeable
                   interest or the furnishing of inaccurate particulars
                   of such chargeable interest.]

13.     This Court had the occasion to interpret Section 13 of the Act in

ITA No. 243/2011, Commissioner of Income Tax-IV versus Fortis

ITA No. 586/2014                                                     Page 8 of 16
Financial Services Limited, decided on 5th July, 2012 and it was held

as under:-

             9. The said Section stipulates that penalty can be
             imposed when an assessee has furnished inaccurate
             particulars of interest or concealed particulars of
             chargeable interest. The Section does not use the
             word deliberately`, willful` or willfully`.
             However, the Section does not have any explanation
             as in the case of Section 271(1)(c) of the Income
             Tax Act, 1961. To this extent the two provisions are
             not para materia. The net effect is that in the absence
             of Explanation the onus will not shift to the
             assessee. The purport and purpose behind
             Explanation to Section 271(1)(c) as explained in
             several decisions, is to shift the onus and impose an
             obligation on the assessee to prove and establish the
             reason/cause, and in case of failure to bonafidely
             elucidate and satisfy their conduct, penalty can be
             imposed under Section 271(1)(c) of the Income Tax
             Act. The Explanation raises a presumption which
             has to be rebutted by the assessee. In the absence of
             Explanation, the presumption or the shifting of onus
             does not take place but this does not mean that
             penalty cannot be imposed where an assessee has
             furnished inaccurate particulars or concealed
             particulars of chargeable interest. The word
             conceal` means to hide or to keep secret. As held in
             Law Lexicon, the said word is derived from the
             latin word concelare` which implies con` &
             celare` to hide. It means to hide or withdraw from
             observation; to cover or keep from sight; to prevent
             discovery of; to withhold knowledge of. However,
             the words inaccurate particulars` are much broader
             and wider. The word inaccurate` in Webster`s
             Dictionary has been defined as not accurate; not
             exact or correct; not according to truth; erroneous; as
             inaccurate statement, copy or transcript`. The word
             particular` means detail or details, details of a claim
             or separate items of an account [see Commissioner
             of Income Tax vs. Reliance Petroproducts Pvt. Ltd.
             [2010] 322 ITR 158 (SC)]. The said part applies

ITA No. 586/2014                                                  Page 9 of 16
             when an assessee furnishes inaccurate detail or
             details or a claim or a separate item of account.

             10. It is settled that when two legal interpretations
             were plausible and there was honest and bona fide
             difference       of     opinion,       penalty     for
             concealment/furnishing of inaccurate particulars,
             should not and cannot be imposed. If the view taken
             by the assessee required consideration and was
             reasonably arguable, he should not be penalized for
             taking the position. The tax statutes are complex and
             there can be a bona fide difference of opinion on
             legal interpretation and understanding of a provision.
             In such cases, even when the interpretation placed
             by the Revenue is accepted, penalty should not be
             imposed if the contention of the assessee was
             plausible and bona fide. Of course full facts should
             be disclosed. The Supreme Court in Reliance
             Petroproducts & Anr. (Supra), examined their earlier
             judgment in the case of Union of India vs.
             Dharmendra Textile Processors, [2008] 306 ITR 277
             (SC) and it has been held as under:-

                   8. A glance at this provision would
                   suggest that in order to be covered, there
                   has to be concealment of the particulars of
                   the income of the assessee. Secondly, the
                   assessee must have furnished inaccurate
                   particulars of his income. The present is
                   not a case of concealment of the income.
                   That is not the case of the Revenue either.
                   However, the learned counsel for Revenue
                   suggested that by making incorrect claim
                   for the expenditure on interest, the
                   assessee     has    furnished      inaccurate
                   particulars of the income. As per Law
                   Lexicon, the meaning of the word
                   "particular" is a detail or details (in plural
                   sense) ; the details of a claim, or the
                   separate items of an account. Therefore,
                   the word "particulars" used in the section
                   271(1)(c) would embrace the meaning of
                   the details of the claim made. It is an

ITA No. 586/2014                                                    Page 10 of 16
                   admitted position in the present case that
                   no information given in the return was
                   found to be incorrect or inaccurate. It is
                   not as if any statement made or any detail
                   supplied was found to be factually
                   incorrect. Hence, at least, prima facie, the
                   assessee cannot be held guilty of
                   furnishing inaccurate particulars. The
                   learned counsel argued that "submitting an
                   incorrect claim in law for the expenditure
                   on interest would amount to giving
                   inaccurate particulars of such income".
                   We do not think that such can be the
                   interpretation of the concerned words. The
                   words are plain and simple. In order to
                   expose the assessee to the penalty unless
                   the case is strictly covered by the
                   provision, the penalty provision cannot be
                   invoked. By any stretch of imagination,
                   making an incorrect claim in law cannot
                   tantamount to furnishing inaccurate
                   particulars. In CIT v. Atul Mohan Bindal
                   [2009] 9 SCC 589, where this court was
                   considering the same provision, the court
                   observed that the Assessing Officer has to
                   be satisfied that a person has concealed the
                   particulars of his income or furnished
                   inaccurate particulars of such income.
                   This court referred to another decision of
                   this court in Union of India v.
                   Dharamendra Textile Processors [2008]
                   13 SCC 369 as also, the decision in Union
                   of India v. Rajasthan Spg. & Wvg. Mills
                   [2009] 13 SCC 448 and reiterated in
                   paragraph 13 that :

                     "13. It goes without saying that for
                     applicability of section 271(1)(c),
                     conditions stated therein must

                   9. Therefore, it is obvious that it must be
                   shown that the conditions under section

ITA No. 586/2014                                                  Page 11 of 16
                   271(1)(c) must exist before the penalty is
                   imposed. There can be no dispute that
                   everything would depend upon the return
                   filed because that is the only document,
                   where the assessee can furnish the
                   particulars of his income. When such
                   particulars are found to be inaccurate, the
                   liability would arise. In Dilip N. Shroff v.
                   Joint CIT [2007] 6 SCC 329#, this court
                   explained the terms "concealment of
                   income" and "furnishing inaccurate
                   particulars". The court went on to hold
                   therein that in order to attract the penalty
                   under section 271(1)(c), mens rea was
                   necessary, as according to the court, the
                   word "inaccurate" signified a deliberate
                   act or omission on behalf of the assessee.
                   It went on to hold that clause (iii) of
                   section 271(1)(c) provided for a
                   discretionary jurisdiction upon the
                   assessing authority, inasmuch as the
                   amount of penalty could not be less than
                   the amount of tax sought to be evaded by
                   reason of such concealment of particulars
                   of income, but it may not exceed three
                   times thereof. It was pointed out that the
                   term "inaccurate particulars" was not
                   defined anywhere in the Act and,
                   therefore, it was held that furnishing of an
                   assessment of the value of the property
                   may not by itself be furnishing inaccurate
                   particulars. It was further held that the
                   Assessing Officer must be found to have
                   failed to prove that his explanation is not
                   only not bona fide but all the facts relating
                   to the same and material to the
                   computation of his income were not
                   disclosed by him. It was then held that the
                   explanation must be preceded by a finding
                   as to how and in what manner, the
                   assessee had furnished the particulars of
                   his income. The court ultimately went on
                   to hold that the element of mens rea was

ITA No. 586/2014                                                   Page 12 of 16
                   essential. It was only on the point of mens
                   rea that the judgment in Dilip N. Shroff v.
                   Joint CIT was upset. In Union of India v.
                   Dharamendra Textile Processors, after
                   quoting from section 271 extensively and
                   also considering section 271(1)(c), the
                   court came to the conclusion that since
                   section 271(1)(c) indicated the element of
                   strict liability on the assessee for the
                   concealment or for giving inaccurate
                   particulars while filing return, there was
                   no necessity of mens rea. The court went
                   on to hold that the objective behind the
                   enactment of section 271(1)(c) read with
                   Explanations indicated with the said
                   section was for providing remedy for loss
                   of revenue and such a penalty was a civil
                   liability and, therefore, wilful concealment
                   is not an essential ingredient for attracting
                   civil liability as was the case in the matter
                   of prosecution under section 276C of the
                   Act. The basic reason why decision in
                   Dilip N. Shroff v. Joint CIT was overruled
                   by this court in Union of India v.
                   Dharamendra Textile Processors, was that
                   according to this court the effect and
                   difference between section 271(1)(c) and
                   section 276C of the Act was lost sight of
                   in the case of Dilip N. Shroff v. Joint CIT.
                   However, it must be pointed out that in
                   Union of India v. Dharamendra Textile
                   Processors, no fault was found with the
                   reasoning in the decision in Dilip N.
                   Shroff v. Joint CIT, where the court
                   explained the meaning of the terms
                   conceal and inaccurate. It was only
                   the ultimate inference in Dilip N. Shroff v.
                   Joint CIT to the effect that mens rea was
                   an essential ingredient for the penalty
                   under section 271(1)(c) that the decision
                   in Dilip N. Shroff v. Joint CIT was

ITA No. 586/2014                                                   Page 13 of 16
             11. It is, equally well settled that establishment of
             mens rea is not the requirement or a condition
             precedent to impose penalty. The question of mens
             rea etc. is important and relevant in the criminal
             proceedings but not for the purpose of civil penalty
             under Section 13 of the Act. The nature and
             character of the two proceedings is different.
             Presence of mental element or mens rea in most
             criminal proceedings is mandatory unless the
             legislature mandate is to the contrary but not so in
             the penalty proceeding under Section 13 of the Act.
             The earlier view that penalty proceedings were quasi
             criminal in nature and require establishment and
             proof of mens rea, has been discarded/disapproved
             in the judgment of the Supreme Court in
             Dharmanedra Textile Processor`s case (supra). In the
             said decision, the view expressed in Dalip N. Shroff
             vs. Joint Commissioner of Income Tax, Mumbai &
             Anr. (2007) 6 SCC 329, was overruled and after
             referring to series of decisions in Director of
             Enforcement vs. MCTM Corpn. (P) Ltd. (1996)2
             SCC 471, JK Industries Ltd. vs. Chief Inspector of
             Factors & Boilers, (1996) 6 SCC 665, R.S. Joshi vs.
             Ajit Mills Ltd. (1977) 4 SCC 98, Gujarat Travancore
             Agency vs. CIT (1989) 3 SCC 52, Swedish Match
             AB vs. SEBI (2004) 11 SCC 641, the following
             legal principle:

                   A penalty imposed for a tax delinquency is
                   a civil obligation, remedial and coercive in
                   its nature, and is far different from the
                   penalty for a crime or a fine or forfeiture
                   provided as punishment for the violation of
                   criminal or penal laws.

             In Corpus Juris Secundrum, Vol. 85 at p. 580, para
             1023, has been approved.

             12. We may note here that the Supreme Court in
             Union of India vs. Rajasthan Spinning & Weaving
             Mills (2009) 13 SCC 448, had examined Section
             11AC of the Central Excise Act, 1994 and keeping
             in view the express language of the said Section has

ITA No. 586/2014                                                  Page 14 of 16
             observed that the word deliberately` used therein
             was significant and requires mens rea. Explaining
             the said decision, the Supreme Court in
             Commissioner of Income Tax, Delhi vs. Atul Mohan
             Bindal, (2009) 9 SCC 589, has held that the said
             decision was confined to the particular Section i.e.
             Section 11AC of the Central Excise Act, 1944 in
             view of the peculiar and distinguishable words used

14.     When we apply the aforesaid parameters to the factual matrix of

the present case in relation to interest on Banks-Bills Re-discounting

Scheme, we do not think the Tribunal has erred in upholding the order

of the Commissioner of Income Tax (Appeals) in deleting the penalty.

Learned counsel for the respondent-assessee has also drawn our

attention to the decision of the Calcutta High Court in the case of

National Insurance Company Limited versus Commisioner of

Income Tax and Another, (2011) 339 ITR 573 (Cal.) wherein it was

held that Section 2(5) would override and interest earned on bill

discounting with credit institutions would not be included in interest

under Section 2(7) of the Act.

15.      We also record that the counsel for the respondent-assessee has

placed before us decision of the Tribunal in Income Tax Appeal

Nos.11/Cal./1997 and 18/Cal./1999 in respect of        Assessment Years

1992-93 and 1995-96 in the case of National Insurance Company

Limited, Kolkata versus DCIT wherein the stand propounded by the

ITA No. 586/2014                                               Page 15 of 16
respondent-assessee was accepted in respect of call money. The

respondent-assessee in respect of call money with banks has succeeded

in the subsequent assessment years in appeals filed under the Act

before the Tribunal and this factum is recorded in the order passed by

the Commissioner of Income Tax (Appeals) as well as the Tribunal.

          In view of the aforesaid position, we do not find any reason to

interfere with the order of the Tribunal affirming deletion of penalty.

The appeal is accordingly dismissed.

                                        SANJIV KHANNA, J.

                                        V. KAMESWAR RAO, J.
        SEPTEMBER 11, 2014

ITA No. 586/2014                                               Page 16 of 16
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