M/s. Himalaya Optical Centre Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 10/DEL/2014

• Counselvise Citation: 1020114 RSA 2014
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 02-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Keywords: Capital asset; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC NEW DELHI BEFORE SHRI G.C. GUPTA, VICE PRESIDENT ITA NO: 10/DEL/2014 AY : - 2008-09 HIMALAYA OPTICAL CENTRE PVT. LTD . VS. ITO 89A, JAMRUDPUR, NEAR N BLOCK WARD-12(4) GREATER KAILASH, NEW DELHI. NEW DELHI. (PAN AABCH1743F) (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI K.K. JAISWAL, SR. DR DATE OF HEARING : 1.6.2015 DATE OF PRONOUNCEMENT :3.7.2 015 O R D E R PER G.C. GUPTA, VICE PRESIDENT THIS APPEAL FOR THE ASSESSMENT YEAR 2008-0 9 IS DIRECTED AGAINST THE ORDER OF THE CIT(A). AT THE TIME OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE/APPELLANT AND, THEREFORE, THE APPEAL OF TH E ASSESSEE IS BEING DECIDED EX PARTY QUA THE ASSESSEE/APPELLANT ON MERITS AFTER HE ARING THE LD. DR. 2. THE ONLY EFFECTIVE GROUND OF THE APPEAL OF THE ASSESEE IS NO. 1,2 WHICH ARE REPRODUCED HEREUNDER :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER PASSED BY CIT(A) IS CONTRARY TO FACTS AND BAD IN LAW. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE IMPOSITION OF PENALTY OF RS. 96,136/- LEVIED U/S 271(1)(C) OF THE I NCOME TAX ACT BY THE ASSESSING OFFICER. 3. LD. DR SUBMITTED THAT THE ASSESSEE HAS WRONGL Y CLAIMED THE DEDUCTION OF RS. 3,11,122/- ALTHOUGH THE EXPENDITURE WAS CAPITAL IN NATURE. HE SUBMITTED THAT IN FACT ITA NO. 10/DEL/2014 HIMALAYA OPTI CAL CENTRE PVT. LTD. VS. ITO 2 THE ASSESSEE HAS WRITTEN OFF ASSETS AMOUNTING TO RS . 3,11,122/- DURING THE YEAR AND SINCE THESE EXPENSES RELATE TO THE CAPITAL ASSETS OF THE ASSESSEE, THE SAME COULD NOT BE ALLOWED AS A DEDUCTION. HE SUBMITTED THAT TH E ASSESSEE HAS FILED INACCURATE PARTICULARS OF INCOME AND HAS ALSO CONCEALED HIS IN COME AND, THEREFORE, THE PENALTY LEVIED U/S 271(1)(C) WAS JUSTIFIED. HE SUBMITTED TH AT THE ASSESSEE COULD HAVE FILED REVISED RETURN ADMITTING ITS MISTAKE BUT IT HAD FA ILED TO TAKE THE APPROPRIATE STEPS IN TIME. HE RELIED ON THE ORDER OF THE AO AND THE CIT( A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. DR AND HAVE PERUSED THE ORDER OF THE AO AND CIT(A). I FIND THAT IT SEEMS THAT THE AO HIMSELF IS NOT CLEAR THAT ON WHAT ACCOUNT THE ADDITION WAS MADE. ON THE FIRST PA GE OF THE ASSESSMENT ORDER, HE HAS RECORDED THAT THE ASSESSEE HAS WRITTEN OFF ASSE TS AMOUNTING TO RS. 3,11,122/- AND THESE EXPENSES WERE RELATED TO THE CAPITAL ASSE TS OF THE ASSESSEE AND, THEREFORE, THE WRITE OFF COULD NOT BE ALLOWED TO TH E ASSESSEE. ON THE SECOND PAGE OF THE ASSESSMENT ORDER THE AO WHILE MAKING THE COMPUT ATION OF INCOME/ LOSS HAS MADE THE DISALLOWANCE OF RS. 3,11,122/- ON ACCOUNT OF UNVOUCHED EXPENSES. I FIND THAT PENALTY LEVIED FOR CONCEALMENT OF INCOME OR FI LING OF INACCURATE PARTICULARS OF INCOME U/S 271(1)(C) OF THE ACT COULD NOT BE SUSTAI NED ON UNCLEAR HEAD OF ADDITION/DISALLOWANCE MADE BY THE AO. IT IS WELL SE TTLED THAT THE PENALTY U/S 271(1)(C) COULD NOT BE LEVIED ON UNVOUCHED EXPENSES . EVEN OTHERWISE IF THE ASSESSEE HAS CLAIMED CERTAIN EXPENSES AS REVENUE IN NATURE AND THE AO HAS HELD THE SAME AS CAPITAL IN NATURE, THE FACTS MAY JUSTIFY THE DISALLOWANCE THEREOF AS NON REVENUE IN NATURE BUT C OULD NOT BE MADE BASIS FOR VISITING THE ASSESSEE WITH PENALTY U/S 271(1)(C) OF THE ACT. IN THESE FACTS OF THE ITA NO. 10/DEL/2014 HIMALAYA OPTI CAL CENTRE PVT. LTD. VS. ITO 3 CASE, I AM OF THE VIEW THAT THE LEVY OF PENALTY OF RS. 96,136/- U/S 271(1)(C) WAS NOT JUSTIFIED AND IS CANCELLED AND THE GROUNDS OF APPE AL OF THE ASSESSEE ARE ALLOWED. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 3.7. 2015. SD/- (G.C. GUPTA) VICE PRES IDENT DATED: THE 3.7.2015 *VEENA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER DY. REGISTRAR SL. NO. DESCRIPTION DATE 1. DATE OF DICTATION BY THE AUTHOR 1.6.2015 2. DRAFT PLACED BEFORE THE DICTATING MEMBER 1.6.2015 3. DRAFT PLACED BEFORE THE SECOND MEMBER 4. DRAFT APPROVED BY THE SECOND MEMBER 5. DATE OF APPROVED ORDER COMES TO THE SR. PS 6. DATE OF PRONOUNCEMENT OF ORDER 7. DATE OF FILE SENT TO THE BENCH CLERK ITA NO. 10/DEL/2014 HIMALAYA OPTI CAL CENTRE PVT. LTD. VS. ITO 4 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER