M/s Krishi Upaj Mandi Samiti, Burhanpur V. The ITO, Burhanpur

ITA 241/IND/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1452 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-11-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 15-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K KARAN
• Assessee Lawyers: R TARWALA
• Keywords: Depreciation
• Section: 271(1)(c)

Judgement Text

PAGE 1 OF 3 - I.T.A.NO. 241/IND/2009 KUMS BURHANP UR II IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI V.K. GUPTA, ACCOUNTANT MEMBER PAN NO. : AAFFK5074P I.T.A.NO.241/IND/2009 A.Y. : 2004-05 KRISHI UPAJ MANDI SAMITI, INCOME-TAX OFFICER, KHANDWA ROAD, BURHANPUR VS BURHANPUR APPELLANT RESPONDENT APPELLANT BY : SHRI R.TARWALA, C. A. RESPONDENT BY : SHRI V.K.KARAN, SR. DR DATE OF HEARING : 11.11.2009 O R D E R PER V.K. GUPTA, A.M. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED BY THE D ECISION OF THE LD. CIT(A) DATED 9.3.2009 IN CONFIRMING THE PENALTY LEV IED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961. 2. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE DECLARED RENTAL INCOME UNDER THE HEAD INCOME FROM BUSINESS, WHICH WAS CH ANGED TO INCOME FROM HOUSE PROPERTY BY THE CIT(A). THE TRIBUNAL AL SO CONFIRMED THE SAID DECISION OF THE LD. CIT(A). THEREAFTER, THE LD . CIT(A) LEVIED A PENALTY U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961, BY HOLDING THE PAGE 2 OF 3 - I.T.A.NO. 241/IND/2009 KUMS BURHANP UR II ASSESSEE WAS GUILTY FOR CLAIMING THE INADMISSIBLE E XPENSES LIKE DEPRECIATION, REPAIRS AND OTHER EXPENSES BY OFFERIN G INCOME UNDER WRONG HEAD. AGGRIEVED BY THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SUCH INCOME WAS DULY DISCLOSED IN THE BOOKS OF ACCOUNT A ND A LEGAL CLAIM HAD BEEN MADE BY THE ASSESSEE IN REGARD TO SUCH RENTAL INCOME AS SUCH RENTAL INCOME HAD BEEN DERIVED FROM THE PROPERTIES, WHICH WERE USED AS A PART OF ITS BUSINESS ACTIVITIES TO ENABLE THE CULTIVATOR S TO STORE THEIR PRODUCES IN THE GODOWN/STORAGE PROVIDED BY THE ASSESSEE. HENCE, IT WAS NEITHER A CASE OF CONCEALMENT OF INCOME NOR A CASE OF FURNISHING O F INACCURATE PARTICULARS OF INCOME. THE LEARNED COUNSEL, IN THIS REGARD, PLACED RELIANCE ON VARIOUS JUDICIAL DECISIONS AND IN PARTI CULARLY REFERRED TO THE DECISION OF THE TRIBUNAL IN THE CASE OF ITO VS. ROB ORANT INVESTMENTS (P) LIMITED, AS REPORTED IN (2006) 7 SOT 181, WHEREIN O N IDENTICAL FACTS, THE PENALTY LEVIED U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961, HAD BEEN CANCELLED. 4. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE O RDER OF THE LD. CIT(A). 5. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES, MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIE S BELOW. PAGE 3 OF 3 - I.T.A.NO. 241/IND/2009 KUMS BURHANP UR II 6. IN OUR VIEW, THIS IS A CASE OF GENUINE DIFFERENCE O F OPINION IN RESPECT OF TAXABILITY OF AN INCOME IN A PARTICULAR HEAD OF INCOME. WE FURTHER FIND THAT IT IS NOT A CASE THAT SUCH A RENT AL INCOME WAS NOT SHOWN BY THE ASSESSEE AT ALL, RATHER IT IS A CASE WHERE T HE ASSESSEE HAS MADE FULL DISCLOSURE OF ALL FACTS RELATING TO THE COMPUTATION OF ITS TOTAL INCOME. ACCORDINGLY, IN OUR VIEW, THIS CASE IS NOT FIT FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT FOR THE REASON STATED HEREINAB OVE. THUS, WE CANCEL THE PENALTY LEVIED BY THE CIT(A). 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STA NDS ALLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 18 TH NOVEMBER, 2009. SD/- SD/- (JOGINDER SINGH) (V. K. GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED :18 TH NOVEMBER, 2009. CPU* 1117D18