M/s. Lala Harbhagwan Das Memorial & Dr. Prem Hospital (P) Ltd., New Delhi V. CIT, Karnal

ITA 2555/DEL/2012

• Counselvise Citation: 255520114 RSA 2012
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 20-11-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 25-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHWANI TANEJA
• Assessee Lawyers: DK MISHR A
• Keywords: Depreciation; Opportunity of being heard; Initiation of penalty proceedings
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI T.S. KAPOOR ITA NO. 2555/DEL/2012 A.YRS. 2006-07 M/S LALA HARBHAGWAN DAS VS. COMMISSIONER OF INCO ME-TAX, & MEMORIAL & DR. PREM KARNAL. HOSPITAL (P) LTD., BISHAN SAROOP COLONY, PANIPAT. PAN : AAACL 9072 G ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI ASHWANI TANEJA ADV. ASSESSEE BY : SHRI D.K. MISHRA CIT (DR) O R D E R PER R.P. TOLANI, J.M: : THIS IS ASSESSEES APPEAL AGAINST ORDER DATED 22-3 -2012 PASSED BY THE COMMISSIONER OF INCOME-TAX, KARNAL U/S 263(1) OF TH E INCOME TAX ACT, 1961, RELATING TO A.Y. 2006-07. FOLLOWING GROUNDS A RE RAISED: 1. THAT HAVING REGARD TO FACTS & CIRCUMSTANCES OF THE CASE, LD. CIT HAS ERRED IN LAW AND ON FACTS IN ASSUMING J URISDICTION U/S 263 BY HOLDING THAT THE PENALTY ORDER DATED 29- 05-2009 WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E. 2. THAT HAVING REGARD TO FACTS & CIRCUMSTANCES OF T HE CASE, LD. CIT HAS ERRED IN LAW AND ON FACTS IN ASSUMING J URISDICTION U/S 263 AND PASSING THE ORDER UNDER THAT SECTION, S ETTING ASIDE THE PENALTY PROCEEDINGS TO THE FILE OF LD. AO IS B AD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2 3. THAT HAVING REGARD TO FACTS & CIRCUMSTANCES OF T HE CASE, LD. CIT HAS ERRED IN LAW AND ON FACTS IN ASSUMING J URISDICTION U/S 263 IS NOT SUSTAINABLE ON VARIOUS LEGAL AND FAC TUAL GROUNDS. 4. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, AMEN D, MODIFY, DELETE ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHO UT PREJUDICE TO EACH OTHER. 2.1. BEFORE WE PROCEED WITH THE ADJUDICATION OF APP EAL, IT IS VERY CRUCIAL TO DWELL UPON THE UNBECOMING CONDUCT OF THE D BENCH IN-CHARGE CIT (DR) SHRI D.K. MISHRA. WHEN THE BENCH SET FOR HEARING A T 10.30AM ON 20-11- 2013, TO OUR SURPRISE, NONE OF THE DR WAS PRESENT I N THE COURTROOM. IT MAY BE WORTHWHILE TO MENTION THAT ABOUT 33 APPEALS WERE FIXED FOR HEARING. WITH THE CURRENT PENDENCY AN ADJOURNMENT TAKES ABOUT 4 TO 5 MONTHS PERIOD FOR FIXATION OF ANY APPEAL FOR NEXT HEARING IN NORMAL C OURSE. 2.2. THUS THE SITUATION BEFORE US AS IT STOOD, NEIT HER ANY DR WAS PRESENT IN THE COURTROOM NOR ANY APPLICATION FOR ADJOURNMENT F ROM THE REVENUES SIDE. WE COULD NOT HAVE ALLOWED TO CRASH THE BENCH, THERE FORE, IN PUBLIC INTEREST AND INTEREST OF JUSTICE, BENCH CONTINUED FIRST WITH THE ADJOURNMENT APPLICATIONS FILED BY THE ASSESSEES AND THEREAFTER TO PROCEED WITH FURTHER HEARING OF THE REMAINING APPEALS. 2.3. AFTER ADJOURNMENT MOTION THIS MATTER WAS CALLE D OUT. SINCE NONE OF THE DRS INCLUDING THE IN-CHARGE OF THE BENCH SHRI D .K. MISHRA CIT (DR) WAS PRESENT, THE MATTER WAS PASSED IT OVER AND THE BENCH CONTINUED WITH PROCEEDINGS OF OTHER CASES. 2.4. AT ABOUT 10.50 AM SHRI D.K. MISHRA CIT(DR) EN TERED THE COURTROOM IN A HUFF AND GAVE A VAGUE REASON FOR HIS ABSENCE T HAT HE WAS HELD UP SOME WHERE. OBSERVING THAT SHRI D.K. MISHRA IS NOW PRESE NT, THIS 263 MATTER, WHICH WAS TO BE ARGUED BY HIM WAS CALLED OUT. 3 2.5. LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT TH E ISSUE IN QUESTION IS SQUARELY COVERED BY ITAT ORDER IN ITS OWN CASE FOR A.Y. 2005-06 WHEREIN THE ITAT VIDE ITS ORDER DATED 13-4-2012 RENDERED IN ITA NO. 5023/DEL/2011 HAS DELETED THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT ON THE SAME SET OF FACTS NAMELY, IN RESPECT OF CLAIM OF DISPUTED RATE OF DEPRECIATION. 2.6. SHRI D.K. MISHRA STRAIGHTWAY REPLIED THAT HE H AS NOT SEEN THE FILE AND NOT PREPARED THE CASE. HE WAS REMINDED THAT BEING C IT (DR), IN-CHARGE OF THE BENCH IT WAS NOT FAIR ON HIS PART TO COME LATE WITHOUT INTIMATION; DONT READ THE FILE; NOT APPLY FOR THE ADJOURNMENT AND MA KE THE WHOLE PROCESS COME TO STAND STILL. SHRI MISHRA THEN ASKED FOR MOR E TIME TO GO THROUGH THE FILE. IN THE INTEREST OF JUSTICE THE BENCH WAS KIND ENOUGH TO GRANT HIM TIME TO GO THROUGH THE FILE. IN THE MEANWHILE THE CASE OF M /S LAKSONS FOOTWEAR P. LTD. WAS ALSO PROCEEDED EX PARTE QUA THE DEPARTMENT , AS THE SR. DR WAS ALSO NOT PRESENT AND THERE WAS NO ADJOURNMENT APPLICATIO N. IT MAY BE PERTINENT HERE TO MENTION THAT VIDE ORDER DATED 20-11-2013 TH E BENCH HAS EXPRESSED ITS DISPLEASURE TOWARDS THE DRS OF D BENCH. AFTE R READING THE FILE, SHRI MISHRA OFFERED HIMSELF FOR THE ARGUMENTS. 2.7. THE MERITS OF THE APPEAL WILL BE DEALT IN SUBS EQUENT PARAS. AFTER THE ASSESSEE COMPLETED THE ARGUMENTS SHRI MISHRA REPLIE D TO IT. HOWEVER, HE WANTED TO CITE THE CASE LAWS WHOSE NAMES OR CITATIO NS NEITHER HE REMEMBERED NOR HAD THE COPIES OF THE CITATION. HE C ONTENDED THAT THEY WILL BE FILED IN A DAY OR TWO. 2.8. IT WAS POINTED OUT TO HIM THAT IT IS NOT FAIR ON HIS PART NOT TO REMEMBER THE CASES, THE EXACT CITATION AND THE PROPOSITION L AID DOWN BY THESE JUDGMENTS. IT WAS NOT A FAIR WAY TO ARGUE THAT THE CASE LAWS NOT REMEMBERED BY HIM WILL BE SUBMITTED SUBSEQUENTLY. HE WAS TOLD THAT IN THIS SITUATION HOW THE ASSESSEES COUNSEL WILL COUNTER THE CASE LA WS WHICH ARE NOT BEING 4 GIVEN, NOR PROPERLY REPRESENTED AND CITED. IT WIL L NOT BE POSSIBLE TO ALLOW HIM TIME TO FILE LIST, GIST AND CITATIONS OF CASE L AWS SUBSEQUENT TO HEARING WHICH ARE NEITHER HEARD BY US NOR PUT UP TO ASSESSE E FOR REPLY THEREON. 2.9. AT THIS JUNCTURE SHRI MISHRA IN A MALICIOUS AN D CONTEMPTUOUS MANNER ALLEGED THAT THE BENCH IS HURRYING THE JUSTICE AND BURYING THE JUSTICE. SUCH TYPE OF UNPROVOKED UTTERANCES FROM A COMMISSIONER OF INCOME TAX, WHO IS THED BENCH INCHARGE OFFICER FROM THE REVENUES SI DE CAME AS A SHOCK TO THE BENCH AND CANNOT BE TAKEN LIGHTLY. IT APPEARS T HAT MR. MISHRA IS NOT AWARE OF HIS RESPONSIBILITIES, COURT DISCIPLINE, PR OCEDURE AND PROPER COURT MANNERISM. HIS ACCUSATION ON THE BENCH THAT IT WAS HURRYING JUSTICE AND BURYING THE JUSTICE IS TOTALLY IRRESPONSIBLE, CONT EMPTUOUS AND MALICIOUS ALLEGATION AND TOTALLY AGAINST THE GLARING FACTS AN D PROCEEDINGS WHICH HAPPENED IN THE OPEN COURT. 2.10. OUT OF 33 APPEALS THAT WERE LISTED, THE BENCH HAD GRANTED ADJOURNMENTS IN 31 CASES MAINLY AT THE REQUEST OF T HE LD. D.R., THOUGH THE HALF HEARTEDLY WRITTEN ADJOURNMENTS WERE FILED BY T HE DEPARTMENT AT ABOUT 11.30 AM ON THAT DAY, WHICH ITSELF WAS AGAINST THE PRESCRIPTIONS OF ITAT RULES 1963. THIS DEMONSTRATES THAT BENCH WAS KIND A ND TOLERANT TO THE DEPARTMENT DESPITE THESE GLARING IRREGULARITIES. ON ONE HAND BENCH TRIED TO HELP AND REDEEM THE OBJECTIONABLE SITUATION IN WHIC H THE DEPARTMENT WAS PUT BY SHRI D.K. MISHRA I.E. BEING NOT PRESENT IN THE C OURT ROOM, NOT FILING ANY ADJOURNMENT APPLICATIONS AND LEAST OF ALL NOT PUTTI NG ANY REPRESENTATIVE TO EXPLAIN ALL THESE ANOMALIES. ON THE OTHER HAND TO C OVER UP HIS FALLACIES SHRI MISHRA VENTURED TO POUNCE ON THE COURT BY MAKING SU CH FALSE, MALICIOUS AND CONTEMPTUOUS ALLEGATIONS. 2.11. SHRI MISHRA WAS TOLD THAT IT WAS NOT THE BEN CH WHICH WAS HURRYING OR BURYING THE JUSTICE BUT IT WAS HE WHO WAS OBSTRUCTI NG THE PROCESS OF 5 DISPENSATION OF JUSTICE. AT THE FIRST INSTANCE HE C OMES LATE IN THE BENCH, DOES NOT COME PREPARED WITH THE CASE FILES, MAKES THE EN TIRE COURT ROOM AND LITIGANTS WAIT WITHOUT JUSTIFICATION. THE BENCH SHO WING KINDNESS AND IN THE INTEREST OF JUSTICE PASSES OVER THE MATTER, AFTER C OMING THE CIT (DR) WITHOUT REMORSE, SAYS THAT HE WAS HELD UP AND NOT STUDIED THE FILES, SOME TIME MAY BE GIVEN, WHICH WAS ALSO GIVEN. THEREAFTER HE WAS N OT IN A POSITION TO CITE THE CASE LAWS AND WANTED TO PRESS HIS INSISTENCE TH AT HE WILL NAME, CITE AND GIVE THE PROPOSITION OF CASE LAWS LATER ON. HE WAS CLEARLY TOLD THAT IT IS NOT THE BENCH WHICH WAS HURRYING OR BURYING THE JUSTIC E BUT RASH AND CONTEMPTUOUS CONDUCT OF SHRI MISHRA WHICH WAS OBSTR UCTING THE SACROSANCT OBJECT OF DISPENSATION OF JUSTICE. HIS CONTEMPTUOUS BEHAVIOUR WAS PROPOSED TO REPRIMANDED AND FIT TO BE VISITED WITH COST AND APPROPRIATE CONSEQUENTIAL ACTION. 2.12. IN VIEW OF THE FOREGOING FACTS AND CIRCUMSTAN CES WE FIND SHRI MISHRAS TOTAL BEHAVIOUR AS UNFORTUNATE, CONTEMPTUO US AND CONDEMNABLE AND DESERVES TO BE VISITED WITH APPROPRIATE ACTION TO I NCULCATE SENSE OF JUDICIAL DISCIPLINE AND AWARENESS OF RESPONSIBILITIES OF DU TIES AND FURTHER TO PROTECT THE DIGNITY OF THE COURT, WHICH STANDS OFFENDED BY THE CONTEMPTUOUS CONDUCT OF SHRI D.K. MISHRA. 2.13. MR. MISHRA WAS THEN REMINDED THAT HIS ALLEGAT IONS ARE UNBECOMING AND MAY BE VISITED WITH COSTS. MR. MISHRA DID NOT S AY ANYTHING IN REPLY. 2.14. AFTER THE BENCH ROSE AND RETIRED TO THE CHAMB ER OF SR. MEMBER FOR DISCUSSION OF THE HEARD CASES AND SIGNING OF THE JU DICIAL PROCEEDINGS, SHRI MISHRA BARGED INTO THE CHAMBER OF SR. MEMBER WITHO UT ASKING PERMISSION AND THREATENED THAT THE BENCH HAS INSULTED HIM AND THAT HE IS GOING TO LODGE COMPLAINT. 6 2.15. IN ORDER TO PACIFY, HE WAS OFFERED TO SIT AND HAVE A CUP OF TEA WHICH THE MEMBERS OF THE BENCH WERE SHARING. HE DID NOT S HOW ANY RESPONSE TO THIS KIND GESTURE BEING EXTENDED BY THE MEMBERS OF THE BENCH. LOOKING AT HIS HOSTILE DEMEANOUR HE WAS TOLD THAT IT WAS NOT P ERMITTED TO ENTER IN THE CHAMBER OF THE JUDGES WITHOUT INTIMATION AND HURL S UCH THREATS OF COMPLAINT TO INTIMIDATE THE BENCH. IN OUR VIEW HIS OVER ALL ACTIONS, BEHAVIOUR AND UTTERANCES AMOUNT TO CONTEMPT OF COUR T. ANY PARTY TO THE LITIGATION HAS NO AUTHORITY TO ENTER THE JUDGES R OOM WITHOUT PERMISSIONS AND ENDEAVOUR TO INTIMIDATE AND PUT UP SUCH THREAT S. 2.16. IN VIEW OF THE ENTIRETY OF FACTS AND CIRCUMST ANCES WE HAVE NO HESITATION BUT TO IMPOSE COSTS OF RS. ONE THOUSAND ON THE DELINQUENT CIT (DR) SHRI D.K. MISHRA WHICH SHOULD BE DEDUCTED FROM HIS SALARY. THE REGISTRY IS DIRECTED TO FORWARD THE COPIES OF THIS ORDER TO CIT(DR)-I, CCIT IN-CHARGE; CHAIRMAN CBDT FOR RECORD PURPOSE AND TAK E APPROPRIATE ACTION INCLUDING PLACING THE OBSERVATIONS IN HIS SERVICE R ECORD AT THEIR END. 2.17. SEPARATE AND APPROPRIATE ACTION FOR INITIATIN G CONTEMPT OF COURT PROCEEDING WILL BE TAKEN IN DUE COURSE AFTER GIVING MR. D.K. MISHRA CIT(DR) ADEQUATE OPPORTUNITY OF BEING HEARD. 2.18. IT MAY BE FURTHER MENTIONED THAT DESPITE BENC HS DIRECTION THAT NO COGNIZANCE OF CASE LAWS BEING FILED BY THE LD. CIT( DR) SUBSEQUENT TO THE HEARING WILL BE CONSIDERED, THE AUDACIOUS MR. D.K. MISHRA VIDE LETTER DATED 21-11-2013 WITHOUT PERMISSION HAS FILED THE CASE LA WS WITH THE BENCH CLERK. SAME WILL NOT BE CONSIDERED AS BEING IN THE DEFIANC E OF THE COURTS DIRECTION COUPLED WITH THE FACT THAT THE ASSESSEE COULD NOT B E HEARD ON THE SAME POST CLOSURE OF HEARING. 3. NOW ADVERTING TO THE APPEAL, BRIEF FACTS ARE: IN ASSESSMENT YEAR 2005- 06 I.E. PRECEDING ASSESSMENT YEAR ASSESSEE HOSPITAL PURCHASED A C.T. SCAN 7 SYSTEM AND CLAIMED 40% DEPRECIATION THEREON UNDER A BELIEF THAT IT AMOUNTS MAGNETIC RESONANCE IMAGINE SYSTEM, WHICH WAS ELIGIB LE FOR 40% DEPRECIATION. DURING THE COURSE OF ASSESSMENT FOR A.Y. 2005-06 THE ASSESSING OFFICER HELD THAT ASSESSEE WAS ELIGIBLE T O DEPRECIATION @ 15% AND ACCORDINGLY THE DEPRECIATION WAS PARTLY DISALLOWED. ASSESSING OFFICER INITIATED PENALTY PROCEEDING QUA THE EXCESS CLAIM O F DEPRECIATION AND IMPOSED THE SAME. IN FIRST APPEAL IT WAS CONFIRMED BY CIT(A). AGGRIEVED, ASSESSEE PREFERRED APPEAL SECOND APPEAL, ITAT VIDE ORDER DATED 13-4-2012 IN ITA NO. 5023/DEL/2011 DELETED THE PENALTY, INTER ALIA, OBSERVING AS UNDER: 17. IN VIEW OF THE FOREGOING, WE ARE OF THE OPINIO N THAT MERE ERRONEOUS CLAIM IN THE ABSENCE OF ANY CONCEALMENT O R FURNISHING OF INACCURATE PARTICULARS, IS NO GROUND FOR LEVYING PENALTY, ESPECIALLY WHEN THERE IS NOTHING ON RECORD TO SHOW THAT THE EXPLANATION OFFERED BY THE ASSESSEE WAS NOT BON A FIDE OR ANY MATERIAL PARTICULAR WERE CONCEALED OR FURNISHED INACCURATE. IN THESE CIRCUMSTANCES, WE HAVE NO HESI TATION IN OBSERVING THAT NO PENALTY IS EXIGIBLE IN RELATION T O CLAIM FOR DEDUCTION OF EXCESS DEPRECIATION AND INTEREST ON AM OUNT BORROWED FOR BUILDING WHICH WAS INCOMPLETE. THEREFO RE, WE HOLD THAT PENALTY IS NOT IMPOSABLE IN THIS CASE AND ACTION OF AUTHORITIES BELOW IN IMPOSING/ CONFIRMING THE PENAL TY U/S 271(1)(C) OF THE ACT IS NEITHER PROPER NOR JUSTIFIE D. AS SUCH, WHILE ACCEPTING THE PLEA OF THE ASSESSEE, WE DIRECT TO DELETE THE IMPUGNED PENALTY IMPOSED/ CONFIRMED. 3.1. FOLLOWING THE EARLIER CLAIM OF DEPRECIATION IN A.Y. 2006-07 ALSO, ASSESSEE CLAIMED THE SAME RATE WHICH WAS DISALLOWED BY ASSESSING OFFICER. THE ASSESSING OFFICER DISALLOWED THE SAME FOLLOWING A.Y. 2005-06 AND INITIATED THE PENALTY PROCEEDINGS IN AY 2006-07 ALS O. THE ASSESSEE FILED REPLY TO THE PENALTY PROCEEDINGS IN RESPONSE TO SHO W CAUSE NOTICE DATED 11- 5-2009, PLEADING THAT DEPRECIATION @ 40% WAS CLAIME D UNDER BONA FIDE BELIEF THAT C.T. SCAN MACHINE AMOUNTED TO MAGNETIC IMAGINING SYSTEM. THE 8 BONA FIDE BELIEF WAS BASED ON ITS INTERPRETATION OF THE EQUIPMENT AND ITS PROFESSIONAL USE WHICH WERE PURELY MEDICO TECHNICAL TERMS. THE ASSESSEES REPLY WAS SUPPORTED BY VARIOUS CASE LAWS WHICH ARE MENTIONED THEREIN. COPY OF THE REPLY IS PLACED AT PAGES 7-9 OF THE P APER BOOK. ASSESSING OFFICER IN AY 2006-07 DROPPED THE PENALTY PROCEEDIN G BY A SHORT ORDER WHICH IS AS UNDER: PENALTY PROCEEDINGS INITIATED U/S 271(1)(C) ARE HE REBY DROPPED . 3.2. CIT INVOKED POWER U/S 263 OF THE ACT AND WAS O F THE VIEW THAT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF R EVENUE. ASSESSEE FILED DETAILED REPLY TO 263 NOTICE, REJECTING THE SAME AN D RELYING ON DELHI HIGH COURT JUDGMENT IN THE CASE OF CIT VS. TOYOTA MOTOR CORPORATION 306 ITR 49 TO THE EFFECT THAT THE PROCEEDINGS BEFORE THE A O ARE QUASI JUDICIAL PROCEEDINGS AND HIS ORDER MUST BE SUPPORTED BY REA SONS. THE CIT OBSERVED THAT ASSESSING OFFICER HAS PASSED A CRYPTIC ORDER D ROPPING PENALTY PROCEEDINGS U/S 271(1)(C), WHICH WAS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. ACCORDINGLY, ACTING U/S 263 T HE CIT SET ASIDE THE PENALTY ORDER, RESTORED IT BACK TO THE FILE OF AS SESSING OFFICER. AGGRIEVED, ASSESSEE IS BEFORE US, CHALLENGING THE 2 63 JURISDICTION. 4. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT: (I) AFTER CLAIM OF DEPRECIATION IN THE PRECEDING YEAR I .E. A.Y. 2005-06 THE C.T. SCAN MACHINE BECAME PART OF THE BLOCK OF A SSETS AND ASSESSEE HAD NO CHOICE BUT TO FOLLOW WHAT WAS FOLLO WED IN EARLIER YEAR. THEREFORE IN THIS YEAR ASSESSEE HAVING FOLLOW ED THE EARLIER METHOD IT CANNOT BE IMPUTED THAT ASSESSEES CLAIM W AS NOT BONA FIDE. 9 (II) ASSESSEES REPLY TO SHOW CAUSE NOTICE CLEARLY SHOW THAT ASSESSING OFFICER HAD CALLED THE ASSESSEE FOR HEARING, CONSID ERED HIS REPLY AND CHOSE TO PASS A SHORT ORDER WHICH IS NOT IN THE HAN DS OF THE ASSESSEE. THUS, THE NECESSARY PROCESS FOR INITIATIO N, HEARING AND COMPLETION OF PENALTY PROCEEDINGS I.E. STATUTORY PR OCESS HAS BEEN DULY FOLLOWED BY THE ASSESSING OFFICER. (III) THE CIT HAS HELD THE ORDER OF THE ASSESSING OFFICER TO BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE ON FOLL OWING COUNTS: (A) THE PRECEDING YEARS ASSESSMENT HAD BECOME FINA L ABOUT THE CLAIM OF DEPRECIATION; (B) THE ACTION OF ASSESSING OFFICER WAS NOT IN CONS ONANCE WITH HONBLE SUPREME COURT JUDGMENT IN UNION OF INDIA VS . DHARMENDRA TEXTILE PROCESSORS & OTHERS 306 ITR 277; (C) RATIO OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS (P) LTD. 230 CTR 320 WA S NOT APPLICABLE. (D) CRYPTIC ONE LINE ORDER PASSED BY ASSESSING OFFI CER DROPPING THE PENALTY PROCEEDINGS U/S 271(1)(C) WAS NOT SUSTAINAB LE. (IV) PENALTY IS TO BE CONSIDERED ON PECULIAR FACTS AND CIRCUMSTANCES OF EACH CASE AND EACH YEAR. IT IS EVIDENT THAT IN THI S CASE THE BONA FIDE BELIEF SUSTAINED BY ASSESSEE IN FIRST YEAR WAS CONTINUED IN SECOND YEAR. THEREFORE, AS FAR AS SECOND YEAR WAS C ONCERNED THE ASSESSEE HAD A BONA FIDE BELIEF OF FOLLOWING EARLIE R PRACTICE. (V) MERELY BECAUSE PENALTY PROCEEDINGS IN PARTICULAR FA CTS OF CASE WAS IMPOSED IN PRECEDING YEAR WILL NOT SUGGEST THAT AUT OMATICALLY THE PENALTY WILL BE LEVIED IN SUCCEEDING YEAR AS THE PE NALTY IS NOT 10 AUTOMATIC AND DEPENDS UPON THE FACTS AND SATISFACTI ON OF THE ASSESSING OFFICER IN THAT YEAR. (VI) RELIANCE IS PLACED ON FOLLOWING JUDGMENT FOR THE PR OPOSITION THAT MERELY BECAUSE THE ORDER WAS NOT ELABORATE IT CANNO T BE HELD THAT THE SAME WAS ERRONEOUS OR WAS PASSED WITHOUT APPLIC ATION OF MIND: - CIT V. DESIGN & AUTOMATION ENGINEERS (BOMBAY) (P) L TD. [2008] 323 ITR 632 (BOM.)(HC); - MANISH KUMAR V. CIT (2012) 134 ITD 27 (INDORE) (TRI B) (VII) IT IS EVIDENT THAT ASSESSING OFFICER PASSED THE PEN ALTY ORDER AFTER PERUSING THE ASSESSEES EXPLANATION AND COMPLETING THE STATUTORY PROCESS IN THIS BEHALF. THEREFORE, IT CANNOT BE HEL D THAT THERE WAS LACK OF INQUIRY. CONSEQUENTLY, THE ORDER PASSED BY THE ASSESSING OFFICER CANNOT BE HELD TO BE ERRONEOUS AND PREJUDIC IAL TO THE INTEREST OF REVENUE RESORTING TO SEC. 263 AS HELD B Y CIT VS. SUNBEAM AUTO LTD. (2009) 289 TAXMAN 436 (DEL)(HC); AND VODAFONE ESSAR SOUTH LTD. VS. CIT (2011) 141 TTJ 84 (DEL.)(TRIB.). (VIII) IT CANNOT BE ASSUMED THAT THERE WAS LACK OF INQUIRY BY ASSESSING OFFICER AND ASSUMING EVEN IF IT IS SO AS LONG ORDER WAS PASSED AFTER CONSIDERING ASSESSEES EXPLANATION WAS CONSIDERED, IT CANNOT BE HELD TO BE A CASE OF TOTAL LACK OF INQUIRY AND CANN OT BE REVISED U/S 263 CIT V. VIKAS POLYMERS (2010) 194 TAXMAN 57 (D EL.)(HC). (IX) CITS OBSERVATION THAT THE ORDER OF ASSESSING OFFIC ER DROPPING PENALTY PROCEEDINGS IS UNSUSTAINABLE BECAUSE IT IS CRYPTIC, IS NOT TENABLE AS IT DOES NOT MAKE THE ORDER OF ASSESSING OFFICER ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE IN VIEW OF DELHI HIGH COURT JUDGMENTS CITED ABVOE. 11 (X) CIT HAS HELD THAT THE ORDER WAS ERRONEOUS AND PREJU DICIAL TO THE INTEREST OF REVENUE IN VIEW OF THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF DHARMENDRA TEXTILE PROCESSORS (SUPRA). A PERUSAL OF THE WRITTEN REPLY FILED BY THE ASSESSEE TO THE PENALTY PROCEEDINGS WILL DEMONSTRATE THAT THE ASSESSEE ITSE LF HAS RELIED ON DHARMENDRA TEXTILE PROCESSORS (SUPRA) AND THE ASSES SING OFFICER HAS DROPPED THE PENALTY PROCEEDINGS AFTER CONSIDERI NG THE REPLY. 4.1. IT IS FURTHER PLEADED THAT IN CASE OF MASTER V IJAY OSWAL VS. ITO 87 ITD 98, RAJKOT BENCH OF THE ITAT HAS HELD THAT EVEN NON-INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) CANNOT BE HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE.. ASSESSING OFFICERS IMPUGNED ORDER IN ANY CASE IS IN CONSONANCE WITH THE PREVIOUS YEARS ITAT ORDER WHICH HAS HELD THE ASSESSEES EXPLANATION TO BE BONA FIDE. IT IS NOT BINDING ON HIM TO NECESSARILY FOLLOW THE PRECEDING YEARS PENALTY ORD ER IN PECULIAR FACTS OF THE CASE IN SECOND YEAR. IN THE SECOND YEAR THE SAID GO ODS MERGED IN THE BLOCK OF ASSETS AND ASSESSEE UNDER BONA FIDE BELIEF CLAIMED THE SAME RATE OF DEPRECIATION @ 40% 4.2. IN THE CASE OF TOYTA MOTOR CORPORATION (SUPRA ), RELIED ON BY THE CIT, THE ASSESSING OFFICER PASSED A CRYPTIC ORDER WITHOU T CARRYING OUT NECESSARY INVESTIGATION AND ITAT FROM ITS OWN SIDE GAVE A FIN DING THAT ASSESSEE WAS UNDER BONA FIDE AND REASONABLE BELIEF. IN THESE PAR TICULAR FACTS IT WAS HELD THAT THE ORDER WAS ERRONEOUS AND PREJUDICIAL. THE F ACTS ARE DISTINGUISHABLE AS IN THIS CASE THE ASSESSING OFFICER CARRIED OUT INQU IRIES BY CALLING EXPLANATION 12 AND DROPPED THE PENALTY PROCEEDINGS AFTER CONSIDER ING THE REPLY OF THE ASSESSEE. 4.3. ASSESSING OFFICERS ORDER DROPPING THE PENALTY PROCEEDINGS IS A POSSIBLE, PLAUSIBLE AND REASONABLE VIEW, MERELY BEC AUSE CIT HOLDS ANOTHER VIEW ON THE SAME FACTS, CANNOT MAKE ASSESSING OFFIC ERS ORDER AS ERRONEOUS AND PREJUDICIAL AS HELD BY HONBLE SUPREME COURT IN MALABAR INDUSTRIAL CO. 243 ITR 83. 5. LD. CIT (DR) SUPPORTED THE ORDER OF THE CIT AND CONTENDS THAT: (I) THE CRYPTIC ORDER PASSED BY THE ASSESSING OFFICER I S UNSUSTAINABLE (II) HAVING HELD THE EXCESS CLAIM OF DEPRECIATION IN PRE CEDING YEAR AS LIABLE FOR PENALTY U/S 271(1)(C) ITSELF SHOWS LACK OF APPLICATION OF MIND BY ASSESSING OFFICER IN DROPPING THE PENALTY P ROCEEDINGS IN THIS YEAR. RELIANCE IS PLACED ON TOYTA MOTOR CORPOR ATION (SUPRA) AND ALLAHABAD HIGH COURT JUDGMENT IN THE CASE OF CI T VS. BRAJ BHUSHAN COLD STORAGE 275 ITR 360. (III) NECESSARY INQUIRIES WERE NOT CARRIED OUT BY ASSESSI NG OFFICER. 6. AS ALREADY MENTIONED, LD. CIT (DR) DID NOT GIVE FURTHER CASE LAWS AND THE BENCH GAVE A RULING THAT ANY CASE LAW FILED BY THE CIT(DR) AFTER THE HEARING IS OVER, WILL NOT BE CONSIDERED. THE CASE L AWS FILED ON 21-11-2013 IN DEFIANCE OF BENCH ORDER, WE ARE UNABLE TO CONSID ER THEM IN VIEW OF OUR ORAL ORDER PRONOUNCED IN THE COURT. 7. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS UNDISPUTED THAT THE ITAT IN PRECEDING YEAR HAS DELETED THE PENALTY LEVIED U/S 271(1)(C), WHICH WAS THE FIRST YEAR OF PURCHASE OF C.T. SCAN MACHINE WHICH WAS HELD TO BE MAGNETIC IMAGINE 13 MACHINE BY THE ASSESSEE. THE BONA FIDE BELIEF OF TH E ASSESSEE HAS BEEN UPHELD BY THE ITAT. 7.1. APROPOS THIS YEAR, LOOKING FROM ANY ANGLE THER E IS NO CHOICE BUT TO FOLLOW THE COORDINATE BENCH JUDGMENT IN ASSESSEES OWN CASE DELETING THE PENALTY ON THE SAME MACHINE, AS THE BONA FIDE BELIE F IS A FINAL FINDING OF FACT BY CO-ORDINATE BENCH, WHICH WE HAVE TO RESPECTFULLY FOLLOW. IN THIS YEAR THE FACTS ARE STRONGER AS ASSESSEE FOLLOWED THE PRECED ING YEARS PRACTICE WHICH BY ITSELF CONSTITUTE A BONA FIDE BELIEF. SUPERIMPOS ING THE ITAT IN PRECEDING YEAR HAS ALREADY HELD THE ASSESSEES BELIEF IN CLAI MING DEPRECIATION @ 40%TO BE BONA FIDE. 7.2. APROPOS CRYPTIC ORDER, AS MENTIONED ABOVE, DEM ONSTRATE THAT A CRYPTIC ORDER PER SE CANNOT BE HELD TO BE ERRONEOUS. IN THE CASE OF TOYTA MOTOR CORPORATION (SUPRA), THE CRYPTIC ORDER WAS HELD TO BE UNSUSTAINABLE AS ASSESSING OFFICER DID NOT CARRY OUT NECESSARY INQUI RIES AND THE ITAT FROM ITS OWN SIDE ASSUMED THAT THERE WAS BONA FIDE BELIEF. I N JUXTAPOSITION, IN THIS CASE THE PENALTY NOTICE WAS ISSUED, THE ASSESSEE D ULY FILED A DETAILED REPLY CITING DETAILED REASONS, EXPLANATION, CASE LAWS INC LUDING DHARMENDRA TEXTILE PROCESSORS (SUPRA). LD. CIT HAS ERRONEOUSLY ASSUMED THAT IT WAS NOT CONSIDERED BY ASSESSING OFFICER. IN OUR CONSIDERED VIEW ONCE THE ASSESSEE HAS FILED THE WRITTEN REPLY AND ATTENDED THE PROCEE DINGS IT CANNOT BE HELD THAT NECESSARY INQUIRIES WERE NOT CARRIED OUT. 7.3. IN VIEW OF THE FACTS MENTIONED ABOVE LOOKING F ROM ANY ANGLE THERE IS NO ESCAPE FROM THE CONCLUSION THAT ASSESSEE CANNOT BE VISITED WITH PENALTY U/S 271(1)(C). IN OUR VIEW THE PENALTY ORDER DROPPI NG PENALTY PROCEEDINGS U/S 271(1)(C), MERELY BECAUSE IT IS CRYPTIC ORDER CANNOT BE HELD TO BE ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE . IT AMOUNTS TO MULTIPLICITY 14 OF PROCEEDINGS ON HYPER TECHNICAL ISSUES. IN VIEW O F THE FOREGOING, WE QUASH THE 263 ORDER. 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 06-12-2013. SD/- SD/- ( T.S. KAPOOR ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 06-12-2013. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR