Shree Hari Steel Industries, Bhavnagar V. The Income tax Officer,Ward-2(3), Bhavnagar

ITA 1059/AHD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57056 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 11-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: Y B OZA
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT , JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 1059/ AHD/2011 (ASSESSMENT YEAR 2007-08) SHRI HARI STEEL INDUSTRIES, PLOT 70-71, GIDC VILLAGE VARTEJ DISTT. BHAVNAGAR VS. ITO, WARD 2(3), BHAVNAGAR PAN/GIR NO. : AALFS4655C (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI Y B OZA, AR RESPONDENT BY: SHRI SAMIR TEKRIWAL, SR. DR DATE OF HEARING: 16.12.2011 DATE OF PRONOUNCEMENT: 31.01.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF LD. CIT(A) XX, AHMEDABAD DATED 31.01.2011 FOR THE ASSESSMENT Y EAR 2007-08. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: THE LD CIT(A) XX, AHMEDABAD HAS ERRED IN LAW AND I N FACTS IN CONFIRMING THE PENALTY OF RS.40,000/- LEVIED BY ITO WARD 2(3), BHAVNAGAR U/S 271(1)(B). LOOKING THE FACTS AND CIR CUMSTANCES OF THE CASE, THE LD . CIT(A) OUGHT TO HAVE DELETED THE PENALTY LEVIED U/S 271(1)(B). 2. IT IS SUBMITTED BY THE LD. A.R. THAT AS PER THE TRIBUNAL DECISION RENDERED IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHI KSHAK SANGH BHAWAN TRUST VS ADIT AS REPORTED IN 115 TTJ 419 (DEL.), IF THE ASSESSMENT ORDER IS FINALLY PASSED U/S 143(3) AND NOT U/S 144 OF THE INCOME TAX ACT, 1961, IT MEANS THAT SUBSEQUENT COMPLIANCE IN THE ASSESSME NT PROCEEDINGS WAS I.T.A.NO.1059 /AHD/2011 2 CONSIDERED AS GOOD COMPLIANCE AND THE DEFAULTS COMM ITTED EARLIER WERE IGNORED BY THE A.O. AND, THEREFORE, IN SUCH CIRCUMS TANCES, THERE COULD HAVE BEEN NO REASON TO COME TO THE CONCLUSION THAT THE DEFAULT WAS WILLFUL AND THEREFORE, THE PENALTY U/S 271(1)(B) OF THE ACT IS NOT JUSTIFIED. HE SUBMITTED THAT IN THE PRESENT CASE ALSO, THE ASSESS MENT ORDER WAS PASSED BY THE A.O. U/S 143(3) AND NOT U/S 144 AND HENCE, P ENALTY IMPOSED BY THE A.O. IN THE PRESENT CASE U/S 271(1)(B) IS NOT JUSTI FIED. LD. D.R. SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT IN THE PRESENT CASE ALSO, THE ASSESSMENT ORDER HAS BEEN PASSED BY THE A.O. U/S 143(3) AND NOT U/S 144 OF THE ACT. WE ALS O FIND THAT THE RETURN OF INCOME WAS FILED BY THE ASSESSEE AT NIL INCOME AND AS PER THE ASSESSMENT ORDER ALSO, THE INCOME ASSESSED IS NIL . WE ALSO FIND THAT THE CLAIM OF THE ASSESSEE REGARDING CARRY FORWARD OF UN ABSORBED BUSINESS LOSS AND UNABSORBED DEPRECIATION WAS ALSO ALLOWED TO BE CARRY FORWARD BY THE A.O. UNDER THESE FACTS, WE FIND THAT THE TRIBUNAL DECISION CITED BY THE LD. A.R. HAVING BEEN RENDERED IN THE CASE OF AKHIL BHAR TIYA PRATHMIK SHIKSHAK SANGH BHWAN TRUST (SUPRA) IS SQUARELY APPL ICABLE AND IN VIEW OF THIS TRIBUNAL DECISION, PENALTY IMPOSED BY THE A .O. U/S 271(1)(B) IS NOT JUSTIFIED. WE, THEREFORE, DELETE THE PENALTY. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. 5. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP I.T.A.NO.1059 /AHD/2011 3 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 24/1 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27/1.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 31/1 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.31/1 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 31/1/2012 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. .