Deputy Commissioner of Income-tax, V. Global Towers Ltd., Pune

ITA 1435/PUN/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7134 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 02-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARCHIT GARG
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 143(3); 148

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.1435/PUN/2015 / ASSESSMENT YEAR : 2008-09 DY.COMMISSIONER OF INCOME - TAX, CIRCLE 1(2), PUNE. . / APPELLANT V/S GLOBAL TOWERS LIMITED, GATE NO.143, MAUJE DINGRAWADI, KOREGAON BHIMA, TAL. SHRIUR, PUNE. PAN : AABCG0483D. . / RESPONDENT ASSESSEE BY : SHRI ARCHIT GARG. REVENUE BY : SHRI AJAY MODI. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL OF THE REVENUE IS EMANATING OUT OF THE OR DER OF COMMISSIONER OF INCOME TAX (A) 1, PUNE DATED 20.08.2015 FOR THE ASSESSMENT YEAR 2008-09. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS A COMPANY STATED TO BE ENGAGED IN THE BUS INESS OF MANUFACTURING OF TOWERS AND TOWER PARTS. ASSESSEE FILED IT S RETURN OF INCOME FOR A.Y. 2008-09 ON 26.03.2009 DECLARING LOSS OF RS.3,40,19,349/-. THE CASE WAS SELECTED FOR SCRUTINY AND T HEREAFTER ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DT.29.10.2010 AND THE TOTAL LOSS WAS ASSESSED AT RS.3,40,19,349/- BEING THE SAME AS / DATE OF HEARING : 07.11.2017 / DATE OF PRONOUNCEMENT: 23.11.2017 2 FILED BY THE ASSESSEE. SUBSEQUENTLY, NOTICE U/S 148 OF TH E ACT WAS ISSUED ON 06.04.2013 AND IN RESPONSE TO WHICH ASSESSEE FILE D THE RETURN OF INCOME ON 06.04.2013. THEREAFTER ASSESSMENT WA S FRAMED U/S 143(3) R.W.S. 147 OF THE ACT ON 11.03.2014 AND THE TO TAL INCOME WAS DETERMINED AT RS.8,42,740/- BY MAKING ADDITION ON AC COUNT OF DISALLOWANCE OF BROUGHT FORWARD OF BUSINESS LOSS OF RS.2,78,00,7 82/- AND UNABSORBED DEPRECIATION OF RS.70,61,307/- AGGREGATING TO RS.3,48,62,089/-. ON THE AFORESAID DISALLOWANCE, AO VIDE ORDE R DT.29.09.2014 PASSED U/S 271(1)(C) OF THE ACT HELD THAT ASS ESSEE HAD CONCEALED PARTICULARS OF INCOME WITHIN THE MEANING OF SEC.271 (1)(C) OF THE ACT AND ACCORDINGLY, LEVIED PENALTY OF RS.1,07,72,386/-. AGGRIEVED BY THE PENALTY ORDER OF AO, A SSESSEE CARRIED THE MATTER BEFORE LD. CIT(A), WHO VIDE ORDER DT.20.0 8.2015 (IN APPEAL NO.PN/CIT(A)-1/ACIT CIR.1(2)/PN/646/14-15) DELETED T HE PENALTY BY OBSERVING AS UNDER : 5. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AS WELL AS REPLY OF THE APPELLANT. I HAVE ALSO GONE THROUGH THE COMPUTATION OF INCOME SHOWING LOSS OF RS.3,40,19,349/-. FOR THE SA KE OF CLARITY, THE SAME IS MARKED AS 'ANNEXURE-I' AND FORMS AS PART O F THIS ORDER. FROM THE ABOVE COMPUTATION OF INCOME IT IS CLEARLY SEEN THAT THE APPELLANT HAS NOT CLAIMED ANY BROUGHT FORWARD LOSS / UNABSORBED DEPRECIATION IN THE COMPUTATION OF INCOME. THIS BEI NG SO, DISALLOWANCE OF THE SAME DOES NOT ARISE. THE ASSESS ING OFFICER HAS MISDIRECTED HIMSELF ON THE BASIS OF COLUMN 25(A) OF 3CD REPORT. FOR THE SAKE OF CLARITY, THE SAME IS REPRODUCED AS UNDE R : 25(A) DETAILS OF BROUGHT FORWARD LOSS OR DEPRECIATION ALLOWANCE IN THE FOLLOWING : MANNER, TO THE EXTENT AVAILABLE S. NO. ASSESSMENT YEAR NATURE OF LOSS ALLOWANCE (IN RUPEES) AMOUNT AS RETURNED (IN RUPEES) AMT. AS ASSESSED (GIVE REFERENCE TO RELEVANT ORDER) REMARKS 1 A.Y. 2000 - 2001 BUSINESS LOSS 63010719 52173824 AO DTD. A.Y. 2000 - 2001 UNABSORBED DEP 10617733 10617733 21/03/2003 2 A.Y. 200 1 - 2002 BUSINESS LOSS 35385574 35385574 13/10/2003 NIL 3 A.Y. 200 1 - 2002 UNABSORBED DEP 8024936 8024936 3 A.Y. 200 2 - 2003 BUSINESS LOSS 19894139 198941391 25/02/2004 A.Y. 200 2 - 2003 UNABSORBED DEP 6155444 615444 4 A.Y. 200 3 - 2004 BUSINESS LOSS 40365995 40365995 A.Y. 200 3 - 2004 UNABSORBED DEP 5040493 5040493 29/ 07 /2004 5 A.Y. 200 4 - 2005 BUSINESS LOSS 37240978 37240978 A.Y. 200 4 - 2005 UNABSORBED DEP 3314008 3314008 29/12/2004 FROM THE ABOVE CHART, IT IS CLEARLY SEEN THAT THE M ENTIONING OF AMOUNT BEING NIL IN COL. 25(A) IS ON ACCOUNT OF OVE RSIGHT AS ALL THE ITEMS ARE MENTIONED BELOW. IN ANY CASE, THIS MISTAK E CANNOT BE EQUATED WITH CONCEALMENT OF INCOME OR FILING OF INA CCURATE PARTICULARS OF INCOME AS LONG AS THERE IS NO INACCU RACY IN COMPUTATION OF INCOME FILED ALONG WITH THE RETURN O F INCOME. FURTHER, ALL THE FACTS ARE AVAILABLE WITH THE DEPAR TMENT AND THEREFORE, ON THIS COUNT ALSO THERE CANNOT BE ANY L EVY OF PENALTY U/S 271(1)(C). ACCORDINGLY, CONSIDERING THE TOTALITY OF THE FACTS, IT IS HELD THAT THE ASSESSING OFFICER HAS MISDIRECTED HIMSELF IN LEVYING THE PENALTY U/S 271(1)(C) OF THE I. T ACT, 1961 IN THIS CASE. ACCORDINGLY, HE IS DIRECTED TO DELETE THE SAME. THUS, THE GROUND S NO.1 AND 2 ARE ALLOWED. 3. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. THE ORDER OF THE LD.CIT(A) IS CONTRARY TO LAW A ND ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN DELETING THE PENALTY LEVIED U/S 271(1)( C) OF THE INCOME- TAX ACT BY THE ASSESSING OFFICER. 3. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE IN IGNORING THE FACT THAT THE ASSESSEE HAS DELIBERATELY FURNISHED INACCURATE PARTICULARS OF IN COME BY CLAIMING BROUGHT FORWARD LOSS BEYOND 8 YEARS. 4. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGED AT THE TIME OF HEARING, THE ORDER OF THE LD.CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED 4. BEFORE US, AT THE OUTSET, LD.D.R. SUBMITTED THAT THOUGH THE REVENUE HAS RAISED VARIOUS GROUNDS BUT THE SOLE CONTRO VERSY IS WITH RESPECT TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. 4 5. BEFORE US, LD.D.R. SUPPORTED THE ORDER OF AO. LD.A.R. ON THE OTHER HAND REITERATED THE SUBMISSIONS MADE BEFORE AO A ND LD. CIT(A) AND SUPPORTED THE ORDER OF LD.CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPEC T TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. WE FIND THAT LD. CIT(A) WH ILE DELETING THE PENALTY HAS GIVEN A FINDING THAT WHILE COMPUTING THE INC OME, ASSESSEE HAD NOT CLAIMED ANY BROUGHT FORWARD LOSS OR UN ABSORBED DEPRECIATION IN THE COMPUTATION OF INCOME AND FURTHER ALL T HE FACTS WERE AVAILABLE WITH THE DEPARTMENT AND THERE WAS NO INACCURACY IN THE COMPUTATION OF INCOME FILED BY THE ASSESSEE. LD. CIT(A) HAS ALSO NOTED THAT AO HAD MIS-DIRECTED HIMSELF ON THE BASIS OF COLUMN NO .25(A) OF 3CD REPORT AND THE MENTIONING OF THE AMOUNT AS NIL IN CO LUMN NO.25(A) WAS ON ACCOUNT OF OVERSIGHT AS ALL THE ITEMS WERE MENTIONED UNDER IT. BEFORE US, REVENUE HAS NOT POINTED OUT ANY FA LLACY IN THE FINDINGS OF LD. CIT(A) AND WE THEREFORE FIND NO REASON TO INTE RFERE WITH THE ORDER OF LD. CIT(A) AND THUS THE GROUNDS OF THE REVENUE ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMIS SED. ORDER PRONOUNCED ON THE 23 RD DAY OF NOVEMBER, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 23 RD NOVEMBER, 2017. YAMINI 5 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-1, PUNE. PR.CIT-I, PUNE. '#$ %%&' , ( &' , / DR, ITAT, A PUNE; $+,-/ GUARD FILE. / BY ORDER // TRUE COPY // ./0%1&2 / SR. PRIVATE SECRETARY ( &' , / ITAT, PUNE.