Shri Arvindbhai Dhanjibhai Chokshi, Ahmedabad V. The Income tax Officer,Ward-1(3), Ahmedabad

ITA 2233/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89253 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 26-03-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 05-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Keywords: Depreciation

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD 00 , ! ' #$, % & BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER !./ ITA NO. 2233/AHD/2011 % ) *)/ ASSESSMENT YEAR: 2002-2003 SHRI ARVINDBHAI DHANJIBHAI CHOKSHI PROP: OF ARVINDKUMAR & CO. 408/5, ARVIND HOUSE C.G. ROAD, AHMEDABAD. PAN : AEIPC 5464 Q VS ITO, WARD - (1) AHMEDABAD. +, / (APPELLANT) -. +, / (RESPONDENT) ASSESSEE(S) BY : NONE REVENUE BY : SHRI M.K. SINGH, SR.DR / DATE OF HEARING : 26/03/2015 / DATE OF PRONOUNCEMENT: 10/04/2015 // O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX-VI, AHMEDABAD DATED 16.6.2011. 2. THE SOLE GROUND OF APPEAL TAKEN BY THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE LEVY PENALTY UNDER S ECTION 271(1)(C) OF THE ACT ON DISALLOWANCE OF CLAIM OF DEPRECIATION ON MERCEDES CAR. 3. WHEN THE CASE WAS CALLED FOR HEARING, NONE WAS P RESENT ON BEHALF OF THE ASSESSEE-APPELLANT AND NEITHER ANY ADJOURNME NT APPLICATION WAS FILED. NOTICE OF HEARING WAS SERVED ON THE ASSESSE E AS EVIDENCED BY ACKNOWLEDGEMENT CARD OF THE POST OFFICE PLACED ON R ECORD, EVIDENCING THE FACT THAT THE NOTICE OF HEARING WAS SERVED ON T HE ASSESSEE ON ITA NO.2233/AHD/2011 2 3.3.2015. THE BENCH OF THE VIEW THAT THE APPEAL OF THE ASSESSEE CAN BE DISPOSED OF, IN THE ABSENCE OF THE ASSESSEE, BY CON SIDERING THE EVIDENCE ON RECORD, AND SUBMISSION OF THE DR. THEREFORE, TH E APPEAL WAS HEARD EX PARTE QUA THE ASSESSEE-APPELLANT, AND DISPOSED OF AFTER HEAR ING OF THE DR AND CONSIDERING MATERIAL AVAILABLE ON RECORD . 4. WE HAVE HEARD THE DR AND PERUSED THE MATERIALS A VAILABLE ON RECORD. IN THE INSTANT CASE, THE PENALTY UNDER SEC TION 271(1)(C) OF THE ACT WAS LEVIED BY THE AO IN RESPECT OF DISALLOWANCE OF DEPRECIATION OF RS.1,29,500/- ON MERCEDES CAR, BECAUSE THE PAYMENT IN RESPECT OF THE SAID CAR WAS MADE ON 8.1.2002. ACCORDING TO THE AO , THOUGH THE ASSESSEE HAS ALLEGEDLY RECEIVED DELIVERY OF CAR ON 21.9.2001, BUT SINCE THE PAYMENT WAS MADE ON 8.1.2002, THE ASSESSEE CAN BE DEEMED AS OWNER OF THE CAR FROM 8.1.2002 ONLY, AND THEREFORE, WAS ELIGIBLE FOR 50% DEPRECIATION ONLY. 5. ACCORDING TO THE CIT(A), IT WAS UNBELIEVABLE SIT UATION AND AT THE BEST IT ONLY SHOWED THAT THE CAR WAS DELIVERED BUT WITHOUT PAYING FOR THE SAME IT COULD NOT BE SAID THAT THE ASSESSEE WAS ITS OWNER FROM THAT DATE. THEREFORE, THE AO LEVIED PENALTY UNDER SECTI ON 271(1)(C) OF THE ACT IN RESPECT OF THE SAID AMOUNT OF RS.1,29,500/-. 6. ON APPEAL, THE CIT(A) CONFIRMED THE LEVY OF PENA LTY ON THE GROUND THAT IN THE QUANTUM APPEAL, THE TRIBUNAL HEL D THAT THE ASSESSEE CLAIMED DEPRECIATION FOR THE FULL YEAR ON MOTOR CAR WHICH WAS OWNED BY HIM FOR LESS THAN SIX MONTHS. THEREFORE, THE CIT( A) HELD THAT THE CLAIM MADE BY THE ASSESSEE COULD NOT BE SUBSTANTIATED, AN D THEREFORE, THE PENALTY FOR CONCEALMENT WAS CLEARLY LEVIABLE BY VIR TUE OF EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT. 7. WE FIND FROM THE ASSESSMENT ORDER THAT THE ASSES SEE HAD FURNISHED COPY OF DELIVERY NOTE ISSUED BY SATYANARA YAN J. JADIA IN SUPPORT OF ITS CLAIM OF RECEIVING DELIVERY OF MERCE DES CAR ON 21.9.2001, ITA NO.2233/AHD/2011 3 AND ON INQUIRY MADE BY THE AO UNDER SECTION 133(6), THE SELLER HAS ALSO CONFIRMED TO THE AO OF MAKING DELIVERY OF CAR IN SE PTEMBER, 2001. THE CAR BEING MOVABLE PROPERTY, THE ASSESSEE BECOMES OW NER THEREOF ON RECEIPT OF DELIVERY OF THE SAME IRRESPECTIVE OF THE DATE OF PAYMENT AND DATE OF TRANSFER OF REGISTRATION IN THE R.C. BOOK. WE FIND THAT NO MATERIAL COULD BE BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT THE DELIVERY NOTE FURNISHED BY THE ASSESSEE WAS FALSE O R INCORRECT. IN THESE CIRCUMSTANCES, THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT IN RESPECT OF DISALLOWANCE OF DEPRECIATION OF RS.1,29,500/- IS UNSUSTAINABLE. WE, THEREFORE, DELETE THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT AND ALLOW THIS GROUND OF APPEAL. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 10 TH APRIL, 2015 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 10 /04/2015