Gujarat Ambuja Exports Ltd., Ahmedabad V. The ACIT.,Cent.Circle-1(1), Ahmedabad

CO 273/AHD/2011

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8179 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 31-01-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-01-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 23-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SHELLLEY JINDAL
• Keywords: Business income; Depreciation; Wrong claim; Unabsorbed depreciation
• Section: 143(3); 80HHC; 153A; 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T(SS).A. NOS.587, 588& 589/ AHD/2011 & I.T.A.NO. 1780/AHD/2012 (ASSESSMENT YEAR 2003-04, 2004-05, 2006-07 & 2005-06 RESPECTIVELY) ACIT, CC-1(1), AHMEDABAD VS. GUJARAT AMBUJA EXPORTS LTD., AMBUJA TOWER, OPP. MEMNAGAR FIRE STATION,, NAVRANGPURA, AHMEDABAD-380009 PAN/GIR NO. : AAACG3980A C.O.NOS.272, 273 & 274/AHD/2011 (ASSESSMENT YEARS 2003-04, 2004-05 & 2006-07 RESPEC TIVELY) GUJARAT AMBUJA EXPORTS LTD., VS. ACIT, CC-1(1), AMBUJA TOWER, AHMEDABAD OPP. MEMNAGAR FIRE STATION,, NAVRANGPURA, AHMEDABAD-380009 (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI SHELLLEY JINDAL, CIT DR RESPONDENT BY: SHRI S N SOPARKAR, AR DATE OF HEARING: 22.01.2013 DATE OF PRONOUNCEMENT: 31.01.2013 O R D E R PER SHRI A. K. GARODIA, AM:- OUT OF THIS GROUP OF FOUR APPEALS AND THREE CROSS OBJECTIONS, WE FIND THAT THERE ARE THREE APPEALS FILED BY THE REVE NUE FOR THE ASSESSMENT I.T(SS).A.NOS. 587,588&589 /AHD/20011 C.O.NOS272,273 & 274/AHD/2011 I.T.A.NO. 1780/AHD/2012. 2 YEARS 2003-04, 2004-05 & 2006-07 AND THREE CROSS OB JECTIONS ARE FILED BY THE ASSESSEE FOR THESE THREE ASSESSMENT YEARS AND A LL THESE ARE DIRECTED AGAINST A COMBINED ORDER OF LD. CIT(A) I, AHMEDABAD DATED 07-9.2011. THE REMAINING ONE APPEAL IS FILED BY THE REVENUE WH ICH IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) I, AHMEDABAD DATED 13.06.2012 AND THIS APPEAL IS IN RESPECT OF PENALTY IMPOSED BY THE A.O. U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 DELETED BY LD. CIT(A). ALL TH ESE APPEALS AND CROSS OBJECTIONS WERE HEARD TOGETHER AND ARE BEING DISPOS ED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST, WE TAKE UP THE THREE APPEALS FILED BY THE REVENUE FOR THE ASSESSMENT YEARS 2003-04, 2004-05 & 2006-07. THE G ROUNDS RAISED BY THE REVENUE IN THESE THREE YEARS ARE IDENTICAL EXCE PT DIFFERENCE IN AMOUNTS AND HENCE, WE REPRODUCE THE GROUNDS RAISED BY THE R EVENUE IN ASSESSMENT YEAR 2003-04 I.E. I.T.A.NO. 587/AHD/2011, WHICH ARE AS UNDER: 1) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE DECISION OF AO IN DELETING THE ADDITION OF RS.8 ,26,242/- MADE ON ACCOUNT OF UNUTILIZED CENVAT/MODVAT CREDIT. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ADDITION OF RS.8,26 ,242/-'. 3) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT (A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTEN T. 2.1 IN ASSESSMENT YEAR 2004-05, THE AMOUNT INVOLVED IS RS.97,92,837/- AND SIMILARLY, IN ASSESSMENT YEAR 2006-07, THE AMOU NT INVOLVED IS RS.10,89,032/-. 2.2 LD. D.R. SUPPORTED THE ASSESSMENT ORDER WHEREAS THE LD. A.R. SUPPORTED THE ORDER OF LD. CIT(A). HE ALSO DRAWN O UR ATTENTION TO PARA 7 ON PAGE 11 OF THE ORDER OF LD. CIT(A) WHERE LD. CIT (A) HAS FOLLOWED THE JUDGMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS UNIQUE INDUSTRIES AS REPORTED IN 307 ITR 350 AND AL SO ANOTHER JUDGEMENT I.T(SS).A.NOS. 587,588&589 /AHD/20011 C.O.NOS272,273 & 274/AHD/2011 I.T.A.NO. 1780/AHD/2012. 3 OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS IDEAL SHEET METAL STAMPING & PRESSING PVT. LTD. AS REPORTED IN 290 ITR 295 (GUJ.) AND ALSO ON THE JUDGEMENT OF HONBLE APEX COURT REN DERED IN THE CASE OF CIT VS INDO NIPPON CHEMICALS CO. LTD. AS REPORTED I N 261 ITR 275 (S.C.). HE SUBMITTED THAT IN VIEW OF THESE JUDGEM ENTS, THE ORDER OF LD. CIT(A) SHOULD BE CONFIRMED. 2.3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND WE FIND THAT IN THE PRESENT CASE, THE DISPUTE IS REGARDING UNUTILIZED C ENVAT CREDIT BALANCE TREATED BY THE ASSESSEE AS AN ADVANCE PAYMENT OF EX CISE DUTY PAID ON PURCHASES OF RAW MATERIALS, CONSUMABLES AND CAPITAL GOODS. THE A.O. HAS TREATED IT AS REVENUE RECEIPT BUT THIS ISSUE IS NOW FULLY COVERED IN FAVOUR OF THE ASSESSEE BY THESE JUDGEMENTS CITED BY THE LD. A.R. WHICH WERE FOLLOWED BY LD. CIT(A). THE BASIS OF THIS DEC ISION IS THIS THAT WHEN THE PURCHASES ARE ACCOUNTED FOR AND DEBITED TO P & L ACCOUNT NET OF SUCH EXCISE DUTY PAID ON PURCHASES, MODVAT/CENVAT CREDIT RECEIVED BY THE ASSESSEE ALREADY STAND INCLUDED IN THE PROFITS OF THE ASSESSEE BY WAY OF REDUCTION IN PURCHASE PRICE DEBITED TO P & L ACC OUNT AND, THEREFORE, IT CANNOT BE ADDED AGAIN. RESPECTFULLY FOLLOWING THES E JUDGEMENTS, WE DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A) ON THIS ISSUE IN ALL THESE THREE YEARS. 2.4 IN THE RESULT, REVENUES APPEALS IN ALL THE THR EE YEARS IN I.T.(SS)A. NOS. 587, 588 & 589/AHD/2011 ARE DISMISSED. 3. NOW, WE TAKE UP THE THREE CROSS OBJECTIONS FILED BY THE ASSESSEE FOR THESE THREE ASSESSMENT YEARS IN CROSS OBJECTIONS NO S. 272. 273 & 274/AHD/2011. THE GROUNDS RAISED BY THE ASSESSEE I N THESE CROSS OBJECTION ARE IDENTICAL AND HENCE, WE REPRODUCE THE GROUNDS FROM C.O. I.T(SS).A.NOS. 587,588&589 /AHD/20011 C.O.NOS272,273 & 274/AHD/2011 I.T.A.NO. 1780/AHD/2012. 4 FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2003- 04 I.E. C.O. NO.272/AHD/2011, WHICH ARE AS UNDER: 1. LD. CIT (A) HAS ERRED IN LAW IN CONFIRMING THE ACTION OF AO IN UPHOLDING THE ASSESSMENT ORDER PASSED U/S 153A(L )(B) R.W.S. 143(3) OF THE ACT WHICH IS PATENTLY ILLEGAL, WITHOU T JURISDICTION, BAD IN LAW AND GROSSLY AGAINST THE SCHEME OF THE AC T. 2. LD. CIT (A) HAS ERRED IN LAW IN CONFIRMING THE A CTION OF AO IN NOT APPRECIATING THAT THE WHOLE OF THE ASSESSMEN T ORDER FRAMED U/S 153A(L)(B) R.W.S. 143(3) OF THE ACT IS BAD IN L AW AS THE SAME CAN ONLY BE FRAMED IF SATISFACTION IS RECORDED BEFO RE CARRYING OUT THE SEARCH AT THE PREMISES OF THE ASSESSEE. IN THE FACTS OF THE PRESENT CASE, ADMITTEDLY NO SATISFACTION HAS BEEN R ECORDED AND THEREFORE THE WHOLE OF THE ASSESSMENT ORDER IS WITH OUT JURISDICTION. 3. LD. CIT (A) HAS ERRED IN LAW IN AND ON FACTS IN NOT APPRECIATING THAT THE EVEN THE ASSESSMENT U/S 153A OF THE ACT IS RESTRICTED TO THE MATERIALS AND EVIDENCES INDICATIN G UNDISCLOSED OR UNRECORDED INCOME FOUND DURING THE COURSE OF THE SE ARCH AND THE SAME CANNOT GO BEYOND THE SAME. IN THE FACTS OF THE PRESENT CASE, NONE OF THE ADDITIONS ARE BASED ON THE SEARCH MATER IAL AND THEREFORE ALSO THE ASSESSMENT ORDER MAY KINDLY BE Q UASHED. 4. BOTH THE LOWER AUTHORITIES HAVE ERRED IN L AW AND ON FACTS IN NOT PROPERLY APPRECIATING AND CONSIDERING VARIOUS S UBMISSIONS, EVIDENCES AND SUPPORTING PLACED ON RECORD DURING TH E COURSE OF THE ASSESSMENT PROCEEDINGS AND NOT PROPERLY APPRECIATIN G VARIOUS FACTS AND LAW IN ITS PROPER PERSPECTIVE AND FURTHER ERRED IN PASSING ORDERS IN GROSS VIOLATION OF THE PRINCIPLES OF NATU RAL JUSTICE. 3.1 IT WAS FAIRLY ADMITTED BY THE LD. A.R. THAT THE SE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE MAINLY IN SUPPORT OF THE ORDER OF LD. CIT(A) AND IF IT IS FOUND THAT THE APPEALS OF THE REVENUE ARE LIABLE TO BE DISMISSED ON MERIT, THEN, THESE CROSS OBJECTIONS ARE ALSO TO BE DISMISSED AS INFRUCTUOUS. WE HAVE ALREADY DECIDED THE ISSUE ON MERIT IN FAVOU R OF THE ASSESSEE WHILE DECIDING THE APPEALS OF THE REVENUE AND HENCE , ALL THESE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED AS I NFRUCTUOUS. I.T(SS).A.NOS. 587,588&589 /AHD/20011 C.O.NOS272,273 & 274/AHD/2011 I.T.A.NO. 1780/AHD/2012. 5 3.2 IN THE RESULT, ALL THE THREE CROSS OBJECTIONS I N C.O. NOS.272,273 & 274/AHD/2011 FOR THE ASSESSMENT YEARS 2003-04, 2004 -05 & 2006-07 ARE DISMISSED. 4. NOW, WE TAKE UP THE REMAINING ONE APPEAL FILED B Y THE REVENUE IN I.T.A.NO. 1780/AHD/2012 FOR THE ASSESSMENT YEAR 200 5-06. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DE LETING THE PENALTY LEVIED IN RESPECT OF ADDITION OF RS.9,38,00 7/- ON ACCOUNT OF DISALLOWANCE OF EXCESS CLAIM OF DEPRECIATION WITHOU T APPRECIATING THE FACT THAT THE CASE ON WHICH THE ID. CIT(A) HAS PLACED RELIANCE ARE ALTOGETHER DIFFERENT FROM THE FACTS OF THE PRES ENT CASE. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE PENALTY LEVIED IN RESPECT OF ADDITION OF RS. 2,23,0 9,295/- ON ACCOUNT OF DISALLOWANCE OF DEDUCTION U/S. 10B IN RE SPECT OF COTTON YARN DIVISION, WITHOUT APPRECIATING THE FACT THAT T HE DEDUCTION/EXEMPTION UNDER THIS SECTION IS AVAILABLE FOR A PERIOD OF 10 CONSECUTIVE ASSESSMENT YEARS BEGINNING WITH THE ASSESSMENT YEAR RELEVANT TO PREVIOUS YEAR IN WHICH THE UNDERTA KING BEGINS THE MANUFACTURE/PRODUCE AND NOT THE PERIOD OF 10 YEARS FROM THE DATE OF COMMENCEMENT OF MANUFACTURING PRODUCTION. IN THE CASE OF THE ASSESSEE, 10 CONSECUTIVE ASSESSMENT YEARS FOR THE B ENEFIT U/S. 10B OF THE ACT FOR THE COTTON YARN UNITY WERE OVER IN T HE A.Y. 2004-05. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE PENALTY LEVIED IN RESPECT OF ADDITION OF RS. 11,60, 050/- ON ACCOUNT OF DISALLOWANCE OF DEDUCTION U/S. 10B IN RESPECT OF KADI UNIT, EXCLUDED THE AMOUNT OF RS.11,06,050/- (COMMISSION O N FREIGHT OF RS.50,062/-, MISC. INCOME OF RS.3,15,256/- AND EXCH ANGE FLUCTUATION OF RS.7,94,732/-) BY HOLDING THAT SAME WAS NOT DERIVED FROM ELIGIBLE UNDERTAKING. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE REST ORED TO THE ABOVE EXTENT. 4.1 LD. D.R. SUPPORTED THE PENALTY ORDER WHEREAS T HE LD. A.R. SUPPORTED THE ORDER OF LD. CIT(A). I.T(SS).A.NOS. 587,588&589 /AHD/20011 C.O.NOS272,273 & 274/AHD/2011 I.T.A.NO. 1780/AHD/2012. 6 4.2 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT IN THE PRESENT CASE, PENALTY WAS IMPOSED BY TH E A.O. IN RESPECT OF FOUR ADDITIONS/DISALLOWANCES BEING; (I) EXCESS CLAI M OF DEPRECIATION OF RS.9,38,007/-, (II) DISALLOWANCE U/S 10B IN RESPECT OF COTTON YARN DIVISION OF RS.2,23,09,295/-, (III) DISALLOWANCE OF DEDUCTION U/S 10B IN RESPECT OF KADI UNIT OF RS.11,60,050/- AND (IV) DIS ALLOWANCE OF CARRY FORWARD UNABSORBED DEPRECIATION OF RS.7,18,74,648/- . LD. CIT(A) HAS DELETED THE PENALTY IN RESPECT OF ALL THESE FOUR DI SALLOWANCES AND THE RELEVANT PARA OF THE ORDER OF LD. CIT(A) IS PARA 3 ON PAGE 2-4 OF HIS ORDER , WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY R EFERENCE: 3. AFTER GOING THROUGH RIVAL SUBMISSIONS FOLLOWING POINTS EMERGE: 1. NO PENALTY IS FOUND LEVIABLE ON EXCESS CLAIM OF DEPRECIATION OF RS.9,38,007 BECAUSE THE ACCOUNTS WERE AUDITED AND T HE AUDITORS PREPARED THE DEPRECIATION CALCULATION AND WHERE THE MISTAKE CREEPS IN DUE TO AUDITORS / ACCOUNTANTS / CLERKS PENALTY U /S. 271(1)(C) IS NOT FOUND FEASIBLE. IN THIS REGARD CASE LAW RELIED UPON BY THE APPELLANT OF HON'BLE GUJARAT HIGH COURT DECISION IN THE CASE OF CIT VS. GLOW TECH STEELS (P) LTD 280 ITR 133 (GUI) IS FOUND SUPPORTING THE CASE OF THE APPELLANT WHEREIN WRONG CLAIM FOR E XTRA SHIFT DEPRECIATION ALLOWANCE MADE DUE TO OVERSIGHT WAS NO T FOUND FIT FOR PENALTY. I 2. WITH RESPECT TO EXCESS CLAIM U/S. 10B OF RS.2,23 ,09,295 IT IS SEEN THAT THE APPELLANT'S ARGUMENT THAT IT WAS UNDE R BONA FIDE BELIEF THAT THE PERIOD OF 10 YEARS FOR CLAIM OF DEDUCTION IS AVAILABLE FROM THE DATE OF START OF PRODUCTION IS NOT DEVOID OF ME RITS. COTTON YARN DIVISION STARTED PRODUCTION FROM 15.6.1994, THE APP ELLANT CLAIMED DEDUCTION FOR PART OF YEAR I.E. TILL 14.6.2004 AND NOT FOR FULL YEAR WHICH ENDS ON 31.3.2005. NO CLAIM OF DEDUCTION HAS BEEN MADE BY THE APPELLANT IN THE FIRST SIX ASSESSMENT YEARS. FU RTHER THE DEDUCTION WAS AGAIN CLAIMED ON THE BASIS OF THE AUD ITORS CERTIFICATE IN FORM 56G, THAT MEANS THE AUDITORS DI D NOT MAKE PROPER CALCULATION AND WHERE THE MISTAKE IS ATTRIBU TABLE TO THE AUDITORS THE APPELLANT CANNOT BE PENALIZED, THEREFO RE IN MY VIEW NO PENALTY IS LEVIABLE ON THE WRONG CLAIM U/S. 10B. IN THIS REGARD CASE I.T(SS).A.NOS. 587,588&589 /AHD/20011 C.O.NOS272,273 & 274/AHD/2011 I.T.A.NO. 1780/AHD/2012. 7 LAW RELIED UPON BY THE APPELLANT OF HON'BLE ITAT MU MBAI 'B' BENCH DECISION IN THE CASE OF NITON VALVE INDUSTRIE S (P) LTD, VS. ACIT (2009) 30 SOT 236 (MUM) IS FOUND SUPPORTING TH E CASE OF THE APPELLANT WHEREIN IT WAS HELD THAT NO PENALTY W AS LEVIABLE U/S. 271(1)(C) WHERE MISTAKE IN CALCULATION OF YEARS FOR CALCULATING DEDUCTION U/S. 80IA WAS FOUND FOR NOT ALLOWING THE DEDUCTION. 3. WITH RESPECT TO EXCESS CLAIM U/S. 10B OF RS.11,6 0,050 IT IS SEEN THAT THE APPELLANT CLAIMED DEDUCTION ON COMMISSION ON FREIGHT OF RS.50,062, MISC INCOME OF RS.3,15,256, AND EXCHANGE FLUCTUATION OF RS.7,94,732 RELATED TO KADI UNIT - WHICH INCOME WAS NOT FOUND ELIGIBLE FOR THE DEDUCTION. AFTER GOING THROUGH RIV AL SUBMISSIONS NO PENALTY CAN BE LEVIED ON THIS POINT FOR WHICH RE LIANCE PLACED BY THE APPELLANT ON HON'BLE MADRAS HIGH COURT DECISION IN THE CASE OF CIT VS. CAPLIN POINT LABORATORIES LTD. (2007) 293 I TR 524 (MAD) IS FOUND APPLYING TO THE CASE OF THE APPELLANT. IN THE AFOREMENTIONED CASE IT HAS BEEN HELD THAT MERE REJE CTION OF ASSESSEE'S CLAIM U/S. 80HHC AND 80I BY SHOWING INTE REST INCOME AS 'BUSINESS INCOME' INSTEAD OF 'INCOME FROM OTHER SOURCES' BY RELYING ON A DIFFERENT INTERPRETATION DOES NOT AMOU NT TO CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. 4. WITH RESPECT TO THE IMPOSITION OF PENALTY ON DIS ALLOWANCE OF CARRIED FORWARD DEPRECIATION OF RS.7,18,74,648, IT IS SEEN THAT THE ASSESSING OFFICER LEVIED PENALTY AS ACCORDING TO HI M NO DEPRECIATION SHOULD HAVE BEEN CARRIED FORWARD BY TH E ASSESSEE BECAUSE IN THE ASSESSMENT ORDER OF AY 2004-05 THE E NTIRE DEPRECIATION HAD BEEN ABSORBED. IT WAS ARGUED BY TH E ID AR THAT THE ASSESSMENT ORDER OF ASSESSMENT YEAR 2004-05 WAS PASSED ON 29-12-2006 WHEREAS RETURN OF INCOME OF AS SESSMENT YEAR 2005-06 ON 30.9.2005. THIS IS FOUND FACTUALLY CORRECT, THEREFORE THERE WAS NO MALA FIDE OR FURNISHING OF I NACCURATE PARTICULARS OF INCOME, ON THE PART OF THE APPELLANT WHATSOEVER, AND IN MY VIEW THIS CANNOT BE THE REASON FOR IMPOSING P ENALTY U/S. 271(1)(C). 4.3 WE HAVE GONE THROUGH THE ABOVE PARAGRAPH OF THE ORDER OF LD. CIT(A) AND WE FIND THAT THE PENALTY IN RESPECT OF 1 ST DISALLOWANCE WAS DELETED BY LD. CIT(A) BY FOLLOWING THE JUDGEMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. GLOW TE CH STEELS (P) LTD I.T(SS).A.NOS. 587,588&589 /AHD/20011 C.O.NOS272,273 & 274/AHD/2011 I.T.A.NO. 1780/AHD/2012. 8 (SUPRA) AND THE LD. D.R. COULD NOT POINT OUT AS TO HOW THIS JUDGEMENT OF HONBLE GUJARAT HIGH COURT IS NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE. SIMILARLY, PENALTY IN RESPECT OF 2 ND DISALLOWANCE IN RESPECT OF DEDUCTION U/S 10B OF COTTON YARN DIVISION WAS DELET ED BY LD. CIT(A) BY FOLLOWING THE JUDGEMENT RENDERED IN THE CASE OF NIT ON VALVE INDUSTRIES (P) LTD. (SUPRA) AND THE LD. D.R. COULD NOT POINT O UT AS TO HOW THIS TRIBUNAL DECISION IS NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE. PENALTY WAS ALSO DELETED BY LD. CIT(A) IN RESPECT O F 3 RD DISALLOWANCE OF DEDUCTION U/S 10B OF KADI UNIT WHICH WAS DELETED BY HIM BY FOLLOWING THE JUDGEMENT OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF CAPLIN POINT LABORATORIES LTD. (SUPRA) AND SINCE LD . D.R. COULD NOT POINT OUT AS TO HOW THIS JUDGEMENT OF HONBLE MADRAS HIGH COURT IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LD. CIT(A) IN RESPECT OF DELETION OF PENALTY IN RESPECT OF ANY OF THESE THREE ADDITIONS/DISALLOWANC ES. 4.4 PENALTY IN RESPECT OF THE 4 TH DISALLOWANCE REGARDING THE CARRY FORWARD DEPRECIATION HAS BEEN DELETED BY LD. CIT(A) ON THIS BASIS THAT THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2004-0 5 WAS PASSED ON 29.12.2006 WHEREAS THE RETURN OF INCOME FOR THE ASS ESSMENT YEAR 2005-06 WAS FILED ON 30.09.2005. THE BASIS OF DELETING THI S PENALTY IS THIS THAT ON THE DATE OF FILING OF RETURN OF INCOME FOR ASSESSME NT YEAR 2005-06, THERE WAS NO DISALLOWANCE OR ADDITION IN ASSESSMENT YEAR 2004-05 AND THE SAME HAS HAPPENED ON 24.12.2006 DUE TO WHICH THE BROUGHT FORWARD DEPRECIATION WAS REDUCED AND, THEREFORE, FOR THIS C LAIM OF ASSESSEE FOR BROUGHT FORWARD UNABSORBED DEPRECIATION FROM THE AS SESSMENT YEAR 2004- 05, PENALTY IS NOT JUSTIFIED. WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A) ON THIS ISSUE ALSO AND HENCE, WE DECLINE TO INTERFERE IN HIS ORDER. I.T(SS).A.NOS. 587,588&589 /AHD/20011 C.O.NOS272,273 & 274/AHD/2011 I.T.A.NO. 1780/AHD/2012. 9 4.5 IN THE RESULT, THIS APPEAL OF THE REVENUE IS AL SO DISMISSED. 5. IN THE COMBINED RESULT, ALL THE FOUR APPEALS OF THE REVENUE AND ALL THE 3 CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSE D. 6. 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 22/1/2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23/01/2013.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 31/01/2013 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.31/01 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 31/01/2013 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. .