The ACIT,Vapi Circle, Vapi V. Vapi Waste & Effulent Management Company Ltd., Vapi

ITA 2756/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0567 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 07-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K PANDEY
• Assessee Lawyers: M G PATEL
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD C BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI T.R. MEENA , ACCOUNT ANT MEMBER ASSTT. COMMISSIONER OF INCOME-TAX, VAPI CIRCLE, VAPI (APPELLANT) VS VAPI WASTE & EFFLUENT MANAGEMENT COMPANY LTD. PLOT NO. 135, VIA HOUSE, CHAR RASTA, GIDC, VAPI PAN NO. AAACV8289P (RESPONDENT) REVENUE BY: SRI A.K. PANDEY, SR.D.R. ASSESSEE BY: SRI M.G. PATEL, A.R. DATE OF HEARING : 11-3-2013 DATE OF PRONOUNCEMENT : 11-3-2013 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THIS IS THE REVENUES APPEAL AGAINST THE ORDER OF LD. CIT(A) VALSAD DATED 28-09-2012 DELETING THE PENALTY U/S 271(1)(C) OF THE ACT IMPOSED BY THE ASSESSING OFFICER. 2. THE ASSESSEE IS A PUBLIC LIMITED COMPANY WHICH I S INCORPORATED BEFORE THE HONBLE GUJRAT HIGH COURT, VAPI INDUSTRIES ASSO CIATION (VIA) SHOWED COMMITMENT TO TAKE EFFECTIVE STEPS FOR CONTAINING P OLLUTION BEING GENERATED ITA NO. 2756AHD/2012 A.Y.:-2006-07 I.T.A NO2756/AHD/2012 A.Y. 2006-07 PAGE NO ACIT VS. VAPI WASTE & EFFLUENT MANAGEMENT COMPANY L TD. 2 BY ITS MEMBERS. THEREFORE, VIA TOOK OVER PLANT OF GIDC FOR TREATMENT OF EFFLUENT. FOR THIS PURPOSE VARIOUS MEMBERS OF THE VIA FORMED A COMPANY AND TOOK OVER COMMON EFFLUENT TREATMENT PLANT FROM GIDC. THE ASSESSEE FILED ITS RETURN DECLARING TOTAL INCOME AT RS. 2,02 ,39,762/-. THE ASSESSING OFFICER MADE AN ADDITION OF RS. 3,03,27,773/- ON AC COUNT OF SURPLUS OF THIS AMOUNT BY DENYING THE PRINCIPLE OF MUTUALITY, CLAIM OF DEPRECIATION OF RS. 3,02,97,456/-, DEDUCTION U/S 80IA OF THE ACT AND CL AIM OF DONATION OF RS.5,47,410/- AND DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS. 8,11,12,401/-. SUBSEQUENTLY, THE ASSESSING OFFICER IMPOSED PENALTY U/S 271(1)(C) OF THE ACT AMOUNTING TO RS. 1,03,79,028/- ON CONCEALED INCOME OF RS. 3,08,34,906/-. 3. WHEN THE MATTER WAS CARRIED TO LD. CIT(A), THE A PPEAL OF THE ASSESSEE WAS ALLOWED BY HIM BY OBSERVING AS UNDER:- 4.3 I HAVE CONSIDERED THE OBSERVATION MADE BY THE AO IN THE PENALTY ORDER. I HAVE ALSO PERUSED THE APPELLATE O RDER PASSED BY THE HONBLE ITAT, AHMEDABAD C BENCH DATED 24-04-2012 IN THE CASE OF THE APPELLANT FOR THE ASSTT. YEARS 2002-03, 2006-07 , 2007-08 AND 2008-09. AS PER THE ORDER, THE HONBLE ITAT, AHMED ABAD, DIRECTED THE AO VERIFY THE CLAIM OF THE ASSESSEE IN RESPECT OF MUTUALITY THAT WHETHER ANY OUTSIDER IS GETTING SERVICES OR NOT FRO M NON-MEMBERS, HAS TO BE TAXED ACCORDINGLY AFTER GIVING FULL OPPORTUNI TY TO THE ASSESSEE. SINCE, THE HONBLE ITAT, AHMEDABAD HAD SET-ASIDE TH E ASSESSMENT ORDER TO THE FILE OF THE AO FOR A FRESH CONSIDERATI ON AFTER AFFORDING OPPORTUNITY TO THE ASSESSEE AND THE BASIS ON WHICH, THE PENALTY WAS LEVIED STANDS SET-ASIDE, THE PENALTY ORDER BECOMES INFRUCTUOUS. THEREFORE, THE PENALTY LEVIED BY THE AO IS DELETED FOR STATISTICAL PURPOSE. THUS, THIS GROUND OF APPEAL IS ALLOWED. SINCE IN QUANTUM PROCEEDINGS THE MATTER HAS BEEN RE STORED BACK BY HONBLE ITAT TO THE FILE OF A.O. FOR FRESH ADJUDICATION PEN ALTY HAS NO LEGS TO STAND, THEREFORE, LD. CIT(A) HAS RIGHTLY DELETED THE PENAL TY AND THE ORDER PASSED BY I.T.A NO2756/AHD/2012 A.Y. 2006-07 PAGE NO ACIT VS. VAPI WASTE & EFFLUENT MANAGEMENT COMPANY L TD. 3 HIM IS HEREBY UPHELD. HOWEVER, IT IS MADE CLEAR TH AT ASSESSING OFFICER WILL BE AT LIBERTY TO INITIATE PENALTY PROCEEDINGS IF HE IS SO SATISFIED AFTER DECIDING THE QUANTUM. 4. REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (T.R. MEENA) ( D.K.TYAGI) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD : DATED 11/03/2013 AK / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '#