JAIDEEP EXHIBITORS & HOTELS P. LTD, MUMBAI V. ITO 11(1)(2), MUMBAI

ITA 2440/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9347 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2003-2004
• Appeal Filed On: 16-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANILKUMAR MISHRA
• Assessee Lawyers: HARSHAD J SHAH
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI N.V.VASUDEVAN, JM ITA NO.2440/MUM/2009 : ASST.YEAR 2003-2004 M/S.JAIDEEP EXHIBITORS & HOTELS P.LTD. PLOT NO.205-A, 7 TH ROAD, KHAR (WEST) MUMBAI 400 052. PA NO.AAACJ1947J. VS. THE INCOME TAX OFFICER WARD 11(1)(2) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI SATISH MODY & HARSHAD J.SHAH RESPONDENT BY : SHRI ANILKUMAR MISHRA O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 18.12.2008 IN RELATION TO THE ASSESSMENT YEAR 2003-2004 UPHOLDING THE PENALTY OF RS.1,39,894 LEVIED BY THE ASSESSING OFFICER U/S.271(1)(C) OF THE ACT. 2. BRIEFLY STATED THE FACTS OF THE CASE, AS GATHERE D FROM THE ASSESSMENT ORDER, ARE THAT THE ASSESSEE-COMPANY CLAIMED DEPRECIATION, AS PER DEPRECIATION SCHEDULE, AMOUNTING TO RS.67,12,181. DURING THE COURSE OF ASS ESSMENT PROCEEDINGS IT WAS OBSERVED BY THE A.O. THAT THERE WAS A TOTALING ERRO R IN THE COLUMN OF DEPRECIATION FOR THE YEAR. IT WAS SEEN THAT THE ACTUAL TOTAL OF DEPRECIATION FOR THE YEAR WAS RS.63,31,518. THE DIFFERENTIAL AMOUNT OF RS.3,80,6 63 WAS DISALLOWED AND PENALTY WAS IMPOSED IN THAT REGARD. BEFORE THE LEARNED FIRS T APPELLATE AUTHORITY IT WAS CONTENDED ON BEHALF OF THE ASSESSEE THAT THERE WAS A BONA FIDE MISTAKE IN TOTALING COLUMN OF DEPRECIATION AND THE ASSESSEE VOLUNTARILY INTIMATED THE SAME TO THE ASSESSING OFFICER BEFORE THE COMPLETION OF ASSESSME NT AND EVEN BEFORE BEING ASKED FOR THE CLARIFICATION. THE LEARNED CIT(A) DID NOT ACCEPT THIS CONTENTION AND UPHELD THE PENALTY LEVIED BY THE A.O. U/S.271(1)(C) OF THE ACT. ITA NO.2440/MUM/2009 M/S.JAIDEEP EXHIBITORS & HOTELS P.LTD. 2 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD IT IS AMPLY BORNE OUT THAT IN THE SCHEDULE OF FIXED ASSETS THE TOTAL AMOUNT OF DEPRECIATION FOR THE YEAR WAS SHOWN AT RS.67.12 LAK HS AS AGAINST THE CORRECT AMOUNT COMING AT RS.63.31 LAKHS. IT IS A MISTAKE COMMITTED WHILE TOTALING THE RELEVANT COLUMN OF THE SCHEDULE OF FIXED ASSETS, WITH NO IN TENTION TO CONCEAL THE INCOME IN ANY MANNER. EXPLANATION 1 TO SECTION 271(1) PROVI DES THAT THE AMOUNT ADDED OR DISALLOWED IN COMPUTING THE TOTAL INCOME OF A PERS ON SHALL BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEE N CONCEALED WHERE THE ASSESSEE FAILS TO OFFER AN EXPLANATION OR OFFERS AN EXPLANAT ION WHICH IS FOUND BY THE AO TO BE FALSE OR THE EXPLANATION OFFERED IS NOT SUBSTANT IATED AND THE ASSESSEE FAILS TO PROVE THAT SUCH EXPLANATION IS BONA FIDE AND THAT A LL THE FACTS RELATING TO THE SAME HAVE BEEN DISCLOSED BY HIM. FROM THE FACTS NOTED AB OVE IT IS SEEN THAT THE ASSESSEE DID FURNISH EXPLANATION WHICH WAS NOT FOUND TO BE FALSE AND ALSO FURTHER SUCH EXPLANATION IS BONA FIDE COUPLED WITH THE DISCLOSUR E OF ALL THE MATERIAL FACTS. SUCH A BONA FIDE MISTAKE, IN OUR CONSIDERED OPINION, CAN NOT BE CONSIDERED AS A CASE OF CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. FURTHER IT IS CLEAR FROM THE ORDER OF THE LEARNED CIT(A) THAT THE ASSES SEE POINTED OUT THIS MISTAKE VOLUNTARILY TO THE ASSESSING OFFICER BEFORE THE COM PLETION OF ASSESSMENT AND EVEN BEFORE BEING ASKED FOR CLARIFICATION IN THIS REGARD . UNDER SUCH CIRCUMSTANCES WE ARE OF THE CONSIDERED OPINION THAT THE LEARNED CIT(A) E RRED IN UPHOLDING THE PENALTY. WE, THEREFORE, OVERTURN HIS ACTION AND ORDER FOR TH E DELETION OF PENALTY. 4. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED ON THIS 25 TH DAY OF JANUARY, 2010. SD/- SD/- (N.V.VASUDEVAN) ( R.S.SYAL ) JUDICIAL MEMBER ACCOUNTANT ME MBER MUMBAI : 25 TH JANUARY, 2010. DEVDAS* ITA NO.2440/MUM/2009 M/S.JAIDEEP EXHIBITORS & HOTELS P.LTD. 3 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A)-II, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI. ITA NO.2440/MUM/2009 M/S.JAIDEEP EXHIBITORS & HOTELS P.LTD. 4 DATE INITIAL 1. DRAFT DICTATED ON 25.01.2010 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 25.01.2010 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 9. DATE OF DISPATCH OF ORDER. &