Janardan Cold Storage Co.Pvt.Ltd., Baroda V. The Income tax Officer,Ward-1(4), Baroda

ITA 2357/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0573 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2013
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 14-02-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 19-10-2012
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA
• Assessee Lawyers: JAGETIYA PRADEEP KUMAR
• Keywords: Depreciation; Revised return
• Section: 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , .!' # , $% $ & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A. NO.2357/AHD/2012 ( ' ' (' / ASSESSMENT YEAR : 2008-09) JANARDAN COLD STORAGE CO.PVT.LTD. CHHANI ROAD NEAR SHASHTRI BRIDGE BARODA 390 002 ' / VS. THE INCOME TAX OFFICER WARD-1(4) BARODA ./ ./ PAN/GIR NO. : AABCJ 1118Q ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI JAGETIYA PRADEEP KUMAR, A.R. / RESPONDENT BY : SHRI Y.P.VERMA, SR.D.R. / DATE OF HEARING : 14/2/2013 !'# / DATE OF PRONOUNCEMENT : 21.2.13 $% / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING F ROM THE ORDER OF LD.CIT(A)-I, BARODA DATED 7/08/2012 PASSED FOR A. Y.2008-09 AND THE ONLY GROUND IS IN RESPECT OF CONFIRMATION OF LEVY O F PENALTY U/S.271(1)(C) OF THE IT ACT OF RS.67,035/-. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING PENALTY ORDER PASSED U/S. 271(1)(C) DATED 29.6.2011 AND THE ASSES SMENT ORDER MADE ITA NO.2357/AHD /2012 JANARDAN COLD 5TORAGE CO.PVT.LTD. VS. ITO ASST.YEAR - 2008-09 - 2 - U/S.143(3) DATED 29.12.2010 WERE THAT THE RETURN OF INCOME WAS FILED AT RS.NIL. THAT RETURN WAS SUBSEQUENTLY REVISED AND T HE TOTAL INCOME WAS DECLARED AT RS.1,44,800/-. IN THE SAID REVISED RET URN, IT WAS DECLARED THAT THE TOTAL INCOME WAS AT RS.2,16,932/- AND AFTER THE SAID SET OFF OF UNABSORBED BUSINESS LOSS OF RS.72,129/- THE RESIDUA L INCOME WAS DECLARED. THEREAFTER, THE ASSESSMENT WAS FINALIZ ED U/S.143(3) AND THE TOTAL INCOME WAS DETERMINED AT RS.2,44,024/-. THER E WERE TWO ADDITIONS WHICH WERE MADE BY THE AO VIZ. DISALLOWANCE OF EXPE NSES OF RS.22,186/- AND DISALLOWANCE OF INSURANCE EXPENSES OF RS.4,906/-. HOWEVER, FOR THE PURPOSE OF LEVY OF CONCEALMENT PEN ALTY, IT WAS HELD THAT THE ASSESSEE HAS INTENTIONALLY CLAIMED THE SET OFF OF LOSS IN THE ORIGINAL RETURN AS WELL AS IN THE REVISED RETURN. IN THIS R EGARD, THE EXPLANATION OF THE ASSESSEE WAS AS UNDER:- FOR PREPARING INCOME TAX RETURN WE ARE PREPARING COMPUTATION FIRST IN WHICH WE HAVE ADDED DEPRECIATION AS PER BA LANCE SHEET RS.173005 BUT DUE TO SOME TECHNICAL AND PACKAGE PRO BLEM THAT FIGURE NOT UPLOADED IN THE INCOME OF RETURN FILLED ON 24/12/2008. BUT, FIGURE WAS ALREADY FILLED UP IN THE BALANCE SH EET AND PROFIT LOSS ACCOUNT. SO THIS IS THE MISTAKE OF COMPUTER O THERWISE WE HAVE ALREADY PAID THE TOTAL TAX RS.184408 WHICH IS SUFFI CIENT TO MEET THE OUR TAX LIABILITY AND WE HAVE ALSO PROVIDED TAX LIA BILITY IN OUR PROFIT & LOSS ACCOUNT RS.99600/-. CARRY FORWARD OF BUSINESS LOSS OF RS.72129/- IN OR IGINAL RETURN AND RS.43927/- IN REVISED RETURN, THIS IS AL SO HAPPENED DUE TO IT RETURN PACKAGE WHICH WAS USED BY US AND THAT PROGRAM HAVING DATA OF LAST TWO YEARS ONLY IN WHICH ORIGINA L RETURN OF A.Y. 2007-08 SHOWING C/F OF RS.72129 SAME AS CARRIED FOR WARD BY THE PACKAGE. OUR CHARTERED ACCOUNTANTS FATHER WAS SUFFERING FRO M DISEASE OF CANCER IN THE YEAR 2006-07 AND 2007-08 D UE TO THAT PROBLEM HE COULDNT GIVEN PROPER ATTENTION AND FATH ER WAS EXPIRED ON 16/08/2008, IN ABOVE CIRCUMSTANCES ABOVE MISTAKE S HAPPENED. ITA NO.2357/AHD /2012 JANARDAN COLD 5TORAGE CO.PVT.LTD. VS. ITO ASST.YEAR - 2008-09 - 3 - AS WE HAVE AGREED IN OUR LETTER DATED 06/12/2010 W E HAVE PAID THE TOTAL DEMAND OF RS.88820 AND COOPERATED WI TH DEPARTMENT IN ASSESSMENT PROCEEDINGS. IN OUR CASE WHATEVER MISTAKE WAS HAPPENED EVERY DA TA IS AVAILABLE WITH THE DEPARTMENT. SO, WE HAVE NOT HID DEN ANY DATA WITH INTENTION TO EVADE THE TAX. SO WE HEREBY REQUEST TO YOU ON HUMANITY GROUND PLEASE DROP THE PENALTY U/S.271(1)( C) AND OBLIGE US. 3. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE CONSIDERED OPINION THAT THE MATERIAL FACTS IN RESPE CT OF CLAIM OF SET OFF OF LOSS WAS VERY MUCH IN THE RECORDS OF THE REVENUE DE PARTMENT. UNDISPUTEDLY, THE STAND OF THE REVENUE IS THAT THER E WAS A DELIBERATE ATTEMPT TO FURNISH THE INACCURATE PARTICULARS IN RE SPECT OF SET OFF OF UNABSORBED BUSINESS LOSS. BUT THERE IS NO SPECIFIC FINDING THAT THOSE PARTICULARS OF UNABSORBED BUSINESS LOSS WAS CONCEA LED BY THE ASSESSEE. RATHER, THE SET OFF OF BUSINESS LOSS WAS PART AND P ARCEL OF THE RECORDS OF THE REVENUE DEPARTMENT AS ALSO REFLECTED IN THE BOO KS OF ACCOUNTS OF THE ASSESSEE. IT IS NOT THE CASE OF THE REVENUE THAT THE IMPUGNED UNABSORBED BUSINESS LOSS WAS FALSE OR NOT GENUINE. EVEN THE A MOUNT OF CLAIM OF BUSINESS LOSS WAS NOT IN DOUBT. BUT THE ONLY OBJEC TION OF THE REVENUE DEPARTMENT IS THAT IT WAS NOT CLAIMED AT THE TIME O F FILING OF THE RETURN. IN OUR CONSIDERED OPINION, MERELY THAT FAILURE SHOU LD NOT LEAD TO THE CONCLUSION THAT THE ASSESSEE HAS CONCEALED THE PART ICULARS OF INCOME. RATHER, WE HEREBY HOLD THAT THE AFORESAID MISTAKE W AS DULY EXPLAINED BY THE ASSESSEE AND THAT EXPLANATION OF THE ASSESSEE W AS NOT FOUND TO BE FALSE OR UNTRUE. WE THEREFORE HOLD THAT AS PER EXC EPTION PRESCRIBED IN SECTION 271(1)(C) BY THE INTRODUCTION OF EXPLANATIO N-1, WHEREIN IN RESPECT OF ANY FACTS MATERIAL TO THE COMPUTATION OF TOTAL INCOME IF ANY ITA NO.2357/AHD /2012 JANARDAN COLD 5TORAGE CO.PVT.LTD. VS. ITO ASST.YEAR - 2008-09 - 4 - PERSON OFFERS AN EXPLANATION AND THAT EXPLANATION I S NOT FOUND TO BE FALSE, THEN SHALL NOT BE HELD AS GUILTY OF CONCEALMENT OF PARTICULARS OF INCOME. RESULTANTLY, WE REVERSE THE FINDINGS OF THE AUTHORI TIES BELOW. WE HEREBY DIRECT TO DELETE THE PENALTY. GROUND IS ALLOWED. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. SD/- SD/- ( &.'!( ')# ) ( ' ' * ) $ +, $ ( A. MOHAN ALANKAMONY ) ( MUKU L KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 21 / 02 /2013 -.., .,../ T.C. NAIR, SR. PS $* + ,-. /$.( / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / 01 2 / CONCERNED CIT 4. 2 () / THE CIT(A)-I, SURAT 5. 567 ,,01, 01#, ('$/$ / DR, ITAT, AHMEDABAD 6. 789 : / GUARD FILE. $*' / BY ORDER, 5 , //TRUE COPY// 0/ 1 ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION DATED 14.2.13 (DICTATION-PAD 5 PAGES ATTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 15.2.13 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 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S21.2.13 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 21.2.13 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