M/s. Mini Sarvodyog Sira, Anand v. The Income tax Officer,Ward-2,, Anand

ITA 360/AHD/2010 | 2006-2007
Pronouncement Date: 30-03-2012 | Result: Allowed

Appeal Details

RSA Number 36020514 RSA 2010
Assessee PAN AACFM9696C
Bench Ahmedabad
Appeal Number ITA 360/AHD/2010
Duration Of Justice 2 year(s) 1 month(s) 24 day(s)
Appellant M/s. Mini Sarvodyog Sira, Anand
Respondent The Income tax Officer,Ward-2,, Anand
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 30-03-2012
Date Of Final Hearing 28-03-2012
Next Hearing Date 28-03-2012
Assessment Year 2006-2007
Appeal Filed On 05-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD BEFORE SHRI A. K. GARODIA ACCOUNTANT MEMBER AND SHRI KUL BHARAT JUDICIAL MEMBER I.T.A. NO. 360/ AHD/2010 (ASSESSMENT YEAR 2006-07) M/S. MINI SARVODYOG SIRA 214 GIDC ESTATE VITTAL UDYHOGNAGAR ANAND VS. ITO WARD 2 ANAND PAN/GIR NO. : AACFM9696C (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI DHIREN SHAH AR RESPONDENT BY: SHRI B L YADAV SR. DR DATE OF HEARING: 28.03.2012 DATE OF PRONOUNCEMENT: 30.03.2012 O R D E R PER SHRI A. K. GARODIA AM:- THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF LD. CIT(A) IV BARODA DATED 23.11.2009 FOR THE ASSESSMENT YEAR 2006-07. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THE LD. CIT (A) HAS GROSSLY ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL. HE OUGHT TO HAVE ALLOWED THE APPEAL FULLY IN ACCORDANCE WITH THE GROUNDS OF APPEAL RAISED BY THE APPELLANT BEFORE HIM. I. LEVY OF PENALTY U/S. 271(1 )(C ) OF THE ACT- RS. 57 9387- 1. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY U/S. 271(1)(C) OF THE ACT OF RS. 57 938/- A S LEVIED BY THE LD. A.O. 2. THE LD. CIT (A) GROSSLY ERRED IN UPHOLDING THE DECISION OF THE LEARNED A.O TO THE EFFECT THAT THE APPELLANT HAS FU RNISHED INACCURATE PARTICULARS OF INCOME IN RESPECT OF DEPR ECIATION CLAIM OF RS. 1 72 127/-. I.T.A.NO. 360 /AHD/2010 2 THE APPELLANT RESERVES ITS RIGHT TO ADD AMEND ALT ER OR MODIFY ANY OF THE GROUNDS STATED HEREINABOVE EITHER BEFORE OR AT THE TIME OF HEARING. THE APPELLANT THEREFORE RESPECTFULLY PRAYS THAT :- 1. PENALTY LEVIED U/S. 271 (1)( C) OF THE ACT OF RS. 57 9387- AS UPHELD BY THE LD. CIT (A) MAY KINDLY BE DELETED. 2. SUCH AND FURTHER RELIEF AS THE NATURE AND CIRC UMSTANCES OF THE CASE MAY JUSTIFY. 3. THE BRIEF FACTS TILL THE STAGE OF LEVY OF PENALT Y BY THE A.O. ARE NOTED BY LD. CIT(A) IN PARA 2 OF HIS ORDER WHICH I S REPRODUCED BELOW: 2. THE GROUND OF APPEAL IN THIS CASE IS REGARDING LEVY OF PENALTY OF RS.57 938/- U/S.271(L)(C). APPELLANT HAD REVISED THE RETURN OF INCOME TO CLAIM DEPRECIATION AT A HIGHER FIGURE OF RS. 11 10 006/-. DURING THE ASSESSMENT PROCEEDINGS ON BEING ASKED T O SUBMIT COMPLETE DETAILS IN RESPECT OF HIGHER DEPRECIATION CLAIM ALONG WITH DOCUMENTARY EVIDENCE FOR PURCHASE OF ASSETS AND EXA CT DATE OF PUTTING THE ASSETS TO USE APPELLANT SUBMITTED THAT REVISED RETURN WAS FILED TO CLAIM ADDITIONAL DEPRECIATION ON NEW P LANT AND MACHINERY IN VIEW OF AMENDMENT MADE EFFECTIVE FROM 1.4.2006. APPELLANT FURTHER SUBMITTED THAT WHILE CLAIMING ADD ITIONAL DEPRECIATION INADVERTENTLY OFFICE STAFF TOOK INTO CONSIDERATION ALL THE ADDITIONS TO PLANT AND MACHINERY AS NEW ACQUISI TION AND CLAIMED DEPRECIATION AS SUCH. APPELLANT SUBMITTED T HAT WHILE COMPILING THE DETAILS FOR THE PURPOSE OF PREPARING REPLY TO AO'S NOTICE IT CAME TO ITS KNOWLEDGE THAT ALL THE ADDIT IONS TO ASSETS DID NOT FALL INTO THE CATEGORY OF NEW PLANT AND MACHINE RY AND THERE WERE INSTANCES OF REVENUE EXPENSES INCURRED FOR SEC OND HAND MACHINERIES WHICH WERE ALSO CAPITALIZED. APPELLANT FILED A REVISED DEPRECIATION CHART REDUCING ITS CLAIM TO RS.9 37 87 9/-. IN RESPONSE TO THE NOTICE OF PENALTY APPELLANT REFERRED TO THE CONDITIONS TO BE SATISFIED FOR LEVY OF PENALTY AND REFERRED TO COURT DECISIONS I.E. K. C. BUILDERS ETC. THE ASSESSING OFFICER DID NOT ACCE PT APPELLANT'S CONTENTION AND HELD THAT APPELLANT HAD FURNISHED IN ACCURATE PARTICULARS OF INCOME AND LEVIED PENALTY U/S.271(L) (C) OF RS.57 938/-. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A) BUT WITHOUT SUCCESS AND NOW THE ASSESSE E IS IN FURTHER APPEAL BEFORE US. I.T.A.NO. 360 /AHD/2010 3 5. IT IS SUBMITTED BY THE LD. A.R. THAT BY WAY OF F ILING REVISED RETURN ON 22.01.2007 THE ASSESSEE MADE A CLAIM OF REVISED DEPRECIATION AMOUNTING TO RS.11 10 006/-. IN THE COURSE OF ASSE SSMENT PROCEEDINGS THE A.O. SIMPLY ASKED THE ASSESSEE TO FILE ENTIRE D ETAILS IN RESPECT OF HIGHER DEPRECIATION CLAIMED ALONG WITH DOCUMENTARY EVIDENCE FOR THE PURCHASE OF ASSETS AND EXACT DATE OF PUT TO USE. IT IS SUBMITTED THAT IN REPLY OF THIS QUERY THE ASSESSEE SUO MOTO WITHDRAW N THE PART CLAIM OF ADDITIONAL DEPRECIATION BY POINTING OUT THAT IN THE COURSE OF FILING REVISED RETURN A MISTAKE WAS COMMITTED WHICH IS NOTED NOW AND THEREFORE THE CLAIM IS PARTLY WITHDRAWN. THE A.O. HAS IMPOSED PE NALTY ON THIS AMOUNT OF CLAIM WITHDRAWN BY THE ASSESSEE IN RESPECT OF AD DITIONAL DEPRECIATION. HE SUBMITTED THAT SINCE THE ASSESSEE HIMSELF HAS WI THDRAWN THE CLAIM OF ADDITIONAL DEPRECIATION IN PART PENALTY IS NOT JUS TIFIED. HE PLACED RELIANCE ON THE JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF CIT VS RELIANCE PETRO PRODUCTS AS REPORTED IN 322 ITR 158. IN REPLY LD. D.R. SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE JUDGMENT CITED BY LD. A.R. OF THE ASSESSEE. WE FIN D THAT LD. CIT(A) HAS FOLLOWED THE JUDGMENT OF HONBLE APEX COURT RENDERE D IN THE CASE OF DHARMENDRA TEXTILES AND OTHERS AS REPORTED IN 306 I TR 277 BUT EVEN AFTER THIS JUDGEMENT OF HONBLE APEX COURT IT HAS TO BE ESTABLISHED THAT THERE IS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME ALTHOUGH IT IS NO MORE NECESSARY TO ESTABLISH MENS REA. WHEN WE EXAMINE THE PRESENT CASE ON THESE LINES AS TO WHETH ER THERE WAS ANY CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME WE FIND THAT THE ASSESSEE HAS SUBMITTED EXPLANATION TO THE A.O. IN THE COURSE OF ASSESSMENT PROCEEDINGS ITSELF THAT WHILE MAKING THE CLAIM OF ADDITIONAL DEPRECIATION BY WAY OF FILING REVISED RE TURN OF INCOME ON I.T.A.NO. 360 /AHD/2010 4 22.01.2007 BY MISTAKE CERTAIN CLAIM WAS MADE IN R ESPECT OF REVENUE EXPENSES INCURRED ON INSTALLATION ETC. FOR SOME OLD ITEMS ALSO. IT WAS ALSO SUBMITTED THAT THIS MISTAKE WAS NOTED WHEN DETAILS WERE BEING PREPARED AS REQUIRED BY THE A.O. AND BEFORE BEING POINTED OU T BY THE A.O. THE CLAIM WAS PARTLY WITHDRAWN. WE ALSO FIND THAT IN T HE ASSESSMENT ORDER IT IS NOTED BY THE A.O. THAT THE ASSESSEE WAS ASKED TO FILE THE ENTIRE DETAILS IN RESPECT OF HIGHER DEPRECIATION CLAIMED ALONG WIT H DOCUMENTARY EVIDENCE FOR THE PURCHASE OF ASSET AND EXACT DATE O F PUT TO USE. THEREAFTER IT IS NOTED BY THE A.O. THAT THE ASSESS EE HAS FILED COMPLETE DETAILS OF ASSETS PURCHASED INCLUDING THE 2 ND AND 1 ST HAND AND AFTER HAVING NOTICED OF MISTAKE FILED A REVISED DEPRECIATION CH ART THEREBY REDUCING THE CLAIM OF DEPRECIATION TO THE EXTENT OF RS.9 37 879/ - AS AGAINST RS.11 10 006/- CLAIMED AS PER REVISED RETURN OF INC OME FILED ON 22.01.2007. THE A.O. HAS IMPOSED PENALTY ON THIS B ASIS THAT HAD HIS OFFICE NOT POINTED OUT THIS MISTAKE THE ASSESSEE W OULD HAVE CLAIMED HIGHER DEPRECIATION AS CLAIMED EARLIER. CONSIDERIN G THE FACTS OF THE PRESENT CASE IN ITS ENTIRETY WE ARE NOT SATISFIED WITH THE CONTENTION OF THE A.O. IN THIS RESPECT. WE FIND THAT THE A.O. HAS RA ISED SIMPLE QUERY FOR FILING NECESSARY DETAILS AND IT IS NOT THIS THAT FR OM THE DETAILS FILED BY THE ASSESSEE HE HAS NOTED THAT THE CLAIM IS NOT CORREC T. ON ASKING TO FILE THE DETAILS BY THE A.O. ASSESSEE HAS GIVEN REVISED WOR KING ON ITS OWN. WE ALSO FIND THAT IT IS THE EXPLANATION OF THE ASSESSE E THAT BY MISTAKE SOME EXPENDITURE IN RESPECT OF OLD ITEMS WAS ALSO INCLUD ED FOR THE PURPOSE OF CLAIMING DEPRECIATION AND ADDITIONAL CLAIM WAS OF R S.1 72 127/- OUT OF TOTAL CLAIM OF RS.11.10 LACS. CONSIDERING THE FACT S OF THE PRESENT CASE WE FIND FORCE IN THIS CONTENTION OF THE ASSESSEE AND I T WAS BONA FIDE MISTAKE AT THE TIME OF FILLING REVISED RETURN OF INCOME. T HEREFORE PENALTY IS NOT JUSTIFIED BECAUSE AS PER EXPLANATION (1) TO SECTION 271(1)(C) IF THE ASSESSEE HAS OFFERED EXPLANATION WHICH ALTHOUGH COU LD NOT BE I.T.A.NO. 360 /AHD/2010 5 SUBSTANTIATED BUT IS BONA FIDE EXPLANATION WHICH IS NOT FOUND TO BE FALSE AND ALL THE NECESSARY FACTS HAVE BEEN DISCLOSED BY THE ASSESSEE THEN IT IS NOT A CASE OF CONCEALMENT OF INCOME OR FURNISHING O F INACCURATE PARTICULARS OF INCOME. IN OUR CONSIDERED OPINION IN THE FACTS OF THE PRESENT CASE THE EXPLANATION OF THE ASSESSEE IS BO NA FIDE AND ALL THE NECESSARY FACTS HAVE BEEN DISCLOSED BY THE ASSESSEE IMMEDIATELY ON ASKING BY THE A.O. AND HENCE PENALTY IS NOT JUSTIF IED. WE THEREFORE DELETE THE PENALTY. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR AHMEDABAD BY ORDER 6. THE GUARD FILE AR ITAT AHMEDABAD 1. DATE OF DICTATION 28/3 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 29/3.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 30/3 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.30/3 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30/3/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .