The ITO, Ward-4(3), Ahmedabad V. HCP Design and Project Mfg. Pvt.Ltd., Ahmedabad

ITA 2850/AHD/2007

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9254 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-08-2009
• Assessment Year: 2001-2002
• Appeal Filed On: 02-07-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GOVIND SINGHAL
• Assessee Lawyers: RAJEEV RANJAM
• Keywords: Depreciation; Set aside
• Section: 271(1)(c); 205

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD A BENCH (BEFORE S/SHRI T.K. SHARMA, JUDICIAL MEMBER AND N.S. SAINI, ACCOUNTANT MEMBER) ITA.NO.2850/AHD/2007 [ASSTT.YEAR : 2001-2002] ITO, WARD-4(3) AHMEDABAD. VS. HCP DESIGN AND PROJECT MGT. PVT. LTD. PARITOSH, USMANPURA AHMEDABAD. REVENUE BY : SHRI GOVIND SINGHAL ASSESSEE BY : SHRI RAJEEV RANJAM O R D E R PER T.K. SHARMA, JUDICIAL MEMBER : THIS IS REVENUES APPEAL AGAINST THE ORDER OF THE CIT(A)-VI, AHMEDABAD 24-4- 2007. SOLE GROUND RAISED IN THE APPEAL IS AS UNDER: 1. THE LD.CIT(A) ERRED IN LAW AND ON THE FACTS OF T HE CASE IN CANCELING THE PENALTY OF RS.2,44,803/- LEVIED U/S.2 71(1)(C) OF THE IT ACT, 1961 AFTER HOLDING THAT THERE IS NO CONCEALMENT/FUR NISHING OF INACCURATE PARTICULARS IN THIS CASE IGNORING THE FACT THAT THE ASSESSEE HAS FAILED TO PROVE THAT THERE WAS NOT INTENTION CONCEALMENT AND THE REVENUE NEED NOT TO PROVE THE ELEMENT OF MENS-REA AS HELD IN THE CAS E OF AM SHAH & CO. VS. CIT, 238 ITR 415 (GUJ) AND CIT VS. GATES FOAM A ND RUBBER COMPANY 91 ITR 467 (KER), ADDL.CIT VS. JEEVANLAL SH AH, 205 ITR 244 (SC) ETC. 2. THE LEARNED CIT(A) CANCELLED THE PENALTY OF RS.2 ,44,803/- LEVIED BY THE AO, AS ABOVE, AFTER HOLDING THAT THERE WAS NO CONCE ALMENT/FURNISHING BY IGNORING THE FACT THAT THE ASSESSEE HAS FAILED TO T HAT THERE WAS NO INTENTIONAL CONCEALMENT. AT THE TIME OF HEARING BOTH SIDES CON CEDED THAT IN THE ASSESSMENT ORDER THE AO DISALLOWED DEPRECIATION TO THE TUNE OF RS.6,18,973/- WHICH WAS UPHELD BY THE CIT(A)-VII. ON FURTHER APPEAL BEFORE THE ITAT, AHMEDABAD, THE TRIBUNAL IN ITA NO.21/AHD/2005 DATED 30-9-2008 RESTORED THE ISSUE REGARDING ALLOWANCE OF DEPRECIATION TO THE FILE OF THE AO. THE SOLE GROUND ON PAGE - 2 ITA.NO.2850/AHD/2007 -2- WHICH THE PENALTY UNDER SECTION 271(1)(C) OF THE AC T WAS LEVIED WAS IN RESPECT OF THIS DEPRECIATION AMOUNTING TO RS.6,18,973/-. I T WAS PLEADED ON BEHALF OF THE ASSESSEE THAT IN VIEW OF THE DECISION OF THE TR IBUNAL IN QUANTUM APPEAL, THE ISSUE REGARDING LEVY OF PENALTY SHOULD ALSO REQUIRE TO BE RESTORED BACK TO THE FILE OF AO TO DECIDE THE SAME AFTER ADJUDICATING TH E ISSUE REGARDING ALLOWANCE OF DECISION, WHICH WAS RESTORED TO THE AO BY THE TR IBUNAL. IN VIEW OF THIS, FINDING MERIT IN THE SUBMISSION OF THE LEARNED COUN SEL FOR THE ASSESSEE, THE IMPUGNED ORDER OF THE CIT(A) IS SET ASIDE AND RESTO RED TO THE FILE OF THE AO WHO WILL CONSIDER THE LEVY OF PENALTY AFTER THE DEC IDING THE ISSUE OF DEPRECIATION AMOUNTING TO RS.6,18,973/- IN ACCORDAN CE WITH LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE IN THE MATTER. 3. IN THE RESULT OF THE REVENUE IS TREATED TO BE AL LOWED FOR STATISTICAL PURPOSE ONLY. ORDER PRONOUNCED IN OPEN COURT ON 28 TH AUGUST, 2009. SD/- SD/- (N.S.SAINI) ACCOUNTANT MEMBER (T.K. SHARMA) JUDICIAL MEMBER PLACE : AHMEDABAD DATE : 28-08-2009 COPY OF THE ORDER FORWARDED TO: 1) : ASSESSEE 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR, ITAT, AHMEDABAD