D.C.I.T Cir - 11,kolkata, Kolkata V. M/s Shalimar Paints Limited, Kolkata

ITA 1293/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4110 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 29-08-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 16-05-2013
• Court: TRIBUNAL
• Department Lawyers: S VENKATRAMANI
• Assessee Lawyers: S C CHATURVEDI
• Keywords: Depreciation; Difference of opinion; Capital expenditure

Judgement Text

ITA NO.1293/KOL/2013 M/S. SHALIMAR PAINTS LTD. A.Y. 2004-05 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SHRI P.M.JAGTAP, AM & SRI N.V.VA SUDEVAN, JM ] I.T.A NO.1293/KOL/2013 ASSESSMENT YEAR : 2004-05 D.C.I.T., CIRCLE-11, -VS.- M/S. SHALIMAR PAINTS LTD. KOLKATA KOLKATA [PAN : AAECS0547D] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI S.VENKATRAMANI, JCIT .SR.DR FOR THE RESPONDENT : SHRI S.C.CHATURVEDI, FC A DATE OF HEARING : 29.11.2016. DATE OF PRONOUNCEMENT : 2.12.2016. ORDER PER N.V.VASUDEVAN, JM THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDER DATED 06.02.2013 PASSED BY THE CIT(A)-XII, KOLKATA RELATING TO A.Y.2004-05. 2. IN THIS APPEAL THE REVENUE HAS CHALLENGED THE ORDER OF CIT(A) WHEREBY THE CIT(A) CANCELLED THE ORDER OF AO IMPOSI NG PENALTY ON THE ASSESSEE U/S 271(1)(C) OF THE ACT. 3. THE FACTS AND CIRCUMSTANCES UNDER WHICH PENAL TY WAS IMPOSED ON THE ASSESSEE BY THE AO ARE AS FOLLOWS :- THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS O F MANUFACTURING OF PAINTS AND VARNISHES. IN THE RETU RN OF INCOME FILED FOR AY 2004-05, THE ASSESSEE WHILE COMPUTING INCOME FRO M BUSINESS CLAIMED 100% DEPRECIATION ON SOFTWARE ACQUIRED FOR RESEARCH AND DEVELOPMENT DIVISION (R & D DIVISION). THE BILL IN SUPPORT OF THE PURCHASE OF SOFTWARE SHOWED THAT SOFTWARE WAS LACTO R MADE PROGRAMME DEVELOPED TO ENABLE THE ASSESSEE TO DEVELOP MORE TH AN 1000 SHADES. ITA NO.1293/KOL/2013 M/S. SHALIMAR PAINTS LTD. A.Y. 2004-05 2 THE AO HOWEVER WAS OF THE VIEW THAT THE SOFTWARE IN QUESTION WAS ACQUIRED FOR NORMAL BUSINESS PURPOSES AND NOT FOR R & D DIVISION. IT WAS NOT DISPUTED THAT HAD THE SOFTWARE BEEN ACQUIRE D FOR R & D DIVISON THEN THE ASSESSEE WAS ENTITLED TO 100% DEPRECIATION ON CAPITAL EXPENDITURE UNDER R & D UNIT WHICH IS DULY APPROVED BY THE DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL RESEARCH, M INISTRY OF SCIENCE & TECHNOLOGY OF THE GOVT. OF INDIA U/S 35 (2 ) (IA) OF THE INCOME TAX ACT, 1961 (ACT). ACCORDINGLY THE CLAIM OF THE ASSES SEE FOR DEPRECIATION WAS ALLOWED AT 60% WHICH IS THE NORMAL RATE OF DEPR ECIATION ON SOFTWARE AS AGAINST THE CLAIM OF THE ASSESSEE FOR 100% DEPRE CIATION. THIS RESULTED IN DISALLOWANCE OF DEPRECIATION TO THE EXT ENT OF RS.65,57,290 AND CONSEQUENT ADDITION OF THE SAID SUM TO THE TOTA L INCOME OF THE ASSESSEE. IT IS IN RESPECT OF THIS ADDITION MADE I N THE ASSESSMENT THAT PENALTY WAS IMPOSED ON THE ASSESSEE U/S.271(1) ( C) OF THE ACT. 4. IT WAS THE PLEA OF THE ASSESSEE THAT IT GOT INS TALLED SOFTWARE COSTING RS.1.25 CRORES FOR ITS R & D UNITS WHICH SOFTWARE W AS DEVELOPED AND INSTALLED BY M/S CROSS BORDER IT (INDIA)LTD AND OTH ER SCIENTIFIC EQUIPMENTS FOR BALANCE OF RS.31,43,224/- TOTALING T O RS. 1,56,43,224/. THE SOFTWARE HAD BEEN DEVELOPED FOR THE R & D UNITS AND THE OTHER EQUIPMENTS WERE ALSO INSTALLED IN THE R & D UNITS. DETAILED NOTE AND RELATED BILLS WERE GIVEN TO THE ASSESSING OFFICER. IT WAS THE FURTHER PLEA OF THE ASSESSEE THAT THE ABOVE ADDITION BY ACQUISIT ION OF SOFTWARE MADE FOR THE R & D UNITS WAS EXTREMELY NECESSARY FOR THE DEVELOPMENT OF NEW PRODUCTS AND TO GET A COMPETITIVE EDGE IN THE M ARKET AND ACHIEVE COST EFFECTIVENESS. ON SIMILAR CAPITAL EXPENDITURES 100% DEDUCTION WAS CLAIMED AS DEDUCTION BY THE ASSESSEE AND HAD BEEN A LLOWED BY THE DEPARTMENT IN THE EARLIER YEARS. HOWEVER DURING THE PREVIOUS YEAR RELEVANT TO AY 04-05, THE ASSESSING OFFICER TOOK A DIFFERENT VIEW AND TREATED IT AS A NORMAL CAPITAL EXPENDITURE AND ALLO WED 60% DEPRECIATIONS ON THE CAPITAL EXPENDITURE DURING THE YEAR AND IN S UBSEQUENT YEARS DID ITA NO.1293/KOL/2013 M/S. SHALIMAR PAINTS LTD. A.Y. 2004-05 3 NOT CONSIDER DEPRECIATION ON W.D.V. IT WAS THE PLE A OF THE ASSESSEE THAT AS AGAINST THE DISALLOWANCE OF DEPRECIATION TH E ASSESSEE PREFERRED APPEAL BEFORE CIT(A) BUT THE CIT(A) CONFIRMED THE O RDER OF THE AO. IT WAS ALSO POINTED OUT BY THE ASSESSEE THAT THE ASSES SEE DID NOT FILE FURTHER APPEAL AS 100% DEPRECIATION WOULD STAND ALL OWED IN SUBSEQUENT YEARS AND THERE WAS NO LOSS/GAIN TO THE ASSESSEE OR TO THE DEPARTMENT AS ALL THE YEARS THE ASSESSEE WAS HAVING TAXABLE INCOM E. IT WAS THE PLEA OF THE ASSESSEE THAT IT NEITHER SUBMITTED ANY WRONG PA RTICULARS NOR CONCEALED ANY INCOME OR FACTS. MERE CHANGE OF OPINI ON OF THE ASSESSING OFFICER CANNOT ATTRACT PENAL PROVISIONS OF SECTION 271 ( 1 ) (C ). DISALLOWANCE OF EXPENSES WILL NOT PER SE AMOUNT TO FURNISHING IN ACCURATE PARTICULAR OF INCOME. 'MERELY' BECAUSE ASS ESSEE HAD CLAIMED [EXPENDITURE] WHICH CLAIM WAS NOT ACCEPTED OR WAS N OT ACCEPTABLE TO THE REVENUE THAT BY ITSELF WOULD NOT ATTRACT PENALTY U/ S 271 ( 1 ) (C) OF THE INCOME TAX ACT. THE ASSESSEE RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS (P) LTD CIVIL APPEAL NO. 2463 OF 2010 DTD. 17.03.2010 (S.C) (2010) 189 TAXMAN 322/322 - ITR- 158 (S.C). 5. THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS O F THE ASSESSEE CANCELLED THE ORDER OF THE AO IMPOSING PENALTY ON T HE ASSESSEE FOR THE FOLLOWING REASONS :- 4. I HAVE CONSIDERED THE FINDING OF THE A.O. IN HIS PENALTY ORDER DT. 22-01-2008 AND WRITTEN SUBMISSION FILED BY THE A.R. DURING THE APPELLATE PROCEEDING. APPEAL ON GROUND NO. 1 AND 2 ARE AGAINS T THE IMPOSITION OF PENALTY U/S. 271 (1) (C ) OF THE I.T. ACT. 1961. FA CTS OF THE CASE IS THAT THE ASSESSEE CLAIMED 100% DEPRECIATION ON SOFTWARE TREATING IT AS PLANT AND MACHINERY FOR RESEARCH AND DEVELOPMENT WORK THE COMPANY. THE AO. DID NOT ACCEPT ASSESSEE'S CLAIM AND ALLOWED 60% DEP RECIATION TREATING THE SOFTWARE AS A NORMAL SOFTWARE USED FOR THE DAY TO D AY FUNCTIONING OF THE COMPANY. THE AO. ALSO INITIATED PENALTY PROCEEDING FOR FILING OF INACCURATE PARTICULARS BY THE ASSESSEE. DURING THE APPELLATE PROCEEDING THE AR. HAS FILED A WRITTEN SUBMISSION WHEREIN HE H AS CITED THE CASE OF CLT S. RELIANCE PETRO PRODUCTS PVT. LTD. (2010), 18 9 TAXMAN 322 ITR 158 (SC). IN THIS ORDER THE HON'BLE SUPREME COURT H AS OBSERVED MERE ITA NO.1293/KOL/2013 M/S. SHALIMAR PAINTS LTD. A.Y. 2004-05 4 MAKING A CLAIM WHICH IS NOT SUSTAINABLE BY LAW ITSE LF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING INCOME OF THE ASSESSEE. I HAVE CONSIDERED THE FINDING OF THE AO. AND THE WR ITTEN SUBMISSION FILED BY THE A.R. ALONG WITH THE ORDER OF THE HON'BLE SUP REME COURT IN RELIANCE PETRO PRODUCTS PVT. LTD. (SUPRA). I THINK THE AO IS NOT JUSTIFIED IN LEVYING PENALTY IN THIS CASE AS MERE BY CLAIMING 100% UNACCEPTABLE DEPRECIATION DOES NOT MEAN FILING OF INACCURATE PAR TICULARS ABOUT THE INCOME OF THE ASSESSEE. THUS, ASSESSEE'S APPEAL ON GROUND NO. 1 AND 2 ARE ALLOWED. 6. AGGRIEVED BY THE ORDER OF CIT(A) THE REVENUE H AS FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 7. WE HAVE HEARD THE SUBMISSIONS OF THE LD. DR, WHO RELIED ON THE ORDER OF THE AO. WE ARE OF THE VIEW THAT ORDER OF T HE CIT(A) IS JUST AND PROPER AND CALLS FOR NO INTERFERENCE. ALL PRIMARY F ACTS RELATING TO THE CLAIM OF THE ASSESSEE ON ACCOUNT OF CLAIM OF DEPREC IATION AT 100% ON COMPUTER SOFTWARE WERE DULY DISCLOSED BY THE ASSESS EE IN ITS RETURN OF INCOME. IT WAS ONLY A DIFFERENCE OF OPINION AS TO WHETHER THE ASSESSEE WOULD BE ENTITLED TO CLAIM THE ENTIRE EXPENDITURE AS CAPITAL EXPENDITURE U/S 35(2)(IA) OR WHETHER THE ASSESSEE WOULD BE ENTI TLED TO 60% ON THE COMPUTER SOFTWARE UNDER RULE 5 OF THE IT RULES. THE FACT THAT THE ASSESSEE MADE A CLAIM OF DEDUCTION 100% OF THE COMP UTER SOFTWARE CANNOT BE REGARD OR CANNOT GIVE RAISE TO ANY INFERE NCE THAT THE ASSESSEE CONCEALED PARTICULARS OF INCOME OR FURNISHED INACCU RATE PARTICULARS OF INCOME. IN THIS REGARD WE ALSO TAKE NOTE OF THE FAC T THAT THE ASSESSEE WAS IN FACT ENGAGED IN RESEARCH AND DEVELOPMENT AND WAS ALSO ALLOWED DEDUCTION U/S 35(2) OF THE ACT. THE CLAIM OF THE AS SESSEE THAT THE SOFTWARE WAS USED IN SUCH RESEARCH AND DEVELOPMENT ACTIVITIES WAS NOT BELIEVED BY THE REVENUE. THE CLAIM MADE BY THE ASSE SEE IN THE GIVEN CIRCUMSTANCES IS A BONA FIDE CLAIM. IN RESPECT OF S UCH BONA FIDE CLAIM WHICH WAS DISALLOWED, THERE CANNOT BE ANY IMPOSITIO N OF PENALTY U/S 271(1)(C) OF THE ACT. WE THEREFORE ARE OF THE VIEW THAT THE ORDER OF ITA NO.1293/KOL/2013 M/S. SHALIMAR PAINTS LTD. A.Y. 2004-05 5 CIT(A) ON THIS ISSUE HAS TO BE CONFIRMED. ACCORDING LY THE APPEAL OF THE REVENUE IS DISMISSED. 8. IN THE RESULT THE APPEAL BY THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2.12.2016 ORDER PRONOUNCED IN THE COURT ON 2.12.2016. SD/- SD/- [P.M.JAGTAP] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2.12.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.M/S. SHALIMAR PAINTS LTD., 13, CAMAC STREET, KOLK ATA-700017. 2. D.C.I.T., CIRCLE-11, KOLKATA. 3. C.I.T.(A)-XII, KOLKATA. 4. CIT-IV, KOL KATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSTT.REGISTRAR, KOLKATA BENCHES