M/s. Gujarat Enviro Protection & Infrastructure Ltd., Surat V. The Income tax Officer, Ward-1(2)., Surat

ITA 3332/AHD/2008

• Counselvise Citation: 333220514 RSA 2008
• Duration Of Justice: 3 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 23-11-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 06-10-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation
• Section: 115JB

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , .'.#$%, '& ' ' BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER APPEAL(S) BY APPELLANT VS. RESPONDENT SL. NO(S). ITA NO(S) ASSESSMENT YEAR(S) APPELLANT (S) RESPONDENT(S) 1. 1519/AHD/2007 2004-05 M/S.GUJARAT ENVIRO PROTECTION & INFRASTRUCTURE LTD. 252/2, GIDC PANDESARA,SURAT PAN:AABCG 3746 K THE ITO WARD-1(2) SURAT 2. 3332/AHD/2008 2004-05 -DO- -DO- 3. 3333/AHD/2008 2005-06 -DO- -DO- 4. 2924/AHD/2009 2006-07 -DO- -DO- ASSESSEE BY : SHRI S.N. SOPARKAR, A.R. REVENUE BY : SHRI JAI RAJ KUMAR, D.R. DATE OF HEARING : 23/11/2011 DATE OF PRONOUNCEMENT : 30-11-2011 DATE OF PRONOUNCEMENT OF CORRIGENDUM : 13.1.12 CORRIGENDUM PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THESE CAPTIONED APPEALS WERE DECIDED ON 30/11/2011 . IN THE SAID APPEALS THE ISSUE REGARDING PENALTY LEVIED U/S.271( 1)(C) HAS NOT BEEN INADVERTENTLY ADJUDICATED, THEREFORE REQUIRES A SUO-MOTU CORRIGENDUM. THE ISSUE OF PENALTY IS PENDING HENCE DECIDED AS U NDER:- ASSESSEES APPEAL; I.E.ITA NO.3332/AHD/2008 FOR A.Y . 2004-05 CORRIGENDUM IN ITA NOS.1519/AHD/07, 3332&3333/AHD/08 AND 2924 /AHD/09 M/S.GUJARAT ENVIRO PROTECTION & INFRASTRUCTURE LTD. VS. ITO ASST.YEARS 2004-05,2005-06 & 2006-07 - 2 - 2. GROUND NOS 1 TO .6 READ AS UNDER: 1) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVYING OF PENAL TY OF RS.52,66,112/- U/S.271(1)(C) OF THE ACT FOR ALLEGED LY FURNISHING INACCURATE PARTICULARS OF THE APPELLANTS INCOME. 2) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVYING OF PENAL TY IN RESPECT OF DISALLOWANCE OF RS.33,00,625/- MADE OUT OF TOP LINE R EXPENDITURE. 3) THE LD. COMMISSIONER OF INCOME TAX (APPEALS0 HA S ERRED N LAW AND ON FACTS IN CONFIRMING THE LEVYING OF PENALTY I N RESPECT OF DISALLOWANCE OF RS.3,00,000/- MADE OUT OF LANDSCAPI NG AND GARDENING EXPENDITURE. 4) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVYING OF PENAL TY IN RESPECT OF DISALLOWANCE OF RS.9,20,609/- MADE OUT OF LAND UTIL IZATION EXPENDITURE. 5) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVYING OF PENAL TY IN RESPECT OF DISALLOWANCE OF DEPRECIATION CLAIM OF RS.1,01,57,82 5/-. 6) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVYING OF PENAL TY U/S.271(1)(C) OF THE ACT WITHOUT APPRECIATING THAT NO TAX HAS BEE N SOUGHT TO BE EVADED IN VIEW OF THE FACT THAT THE APPELLANTS INC OME IS ELIGIBLE FOR 100% DEDUCTION U/S.80IA OF THE ACT. CORRIGENDUM IN ITA NOS.1519/AHD/07, 3332&3333/AHD/08 AND 2924 /AHD/09 M/S.GUJARAT ENVIRO PROTECTION & INFRASTRUCTURE LTD. VS. ITO ASST.YEARS 2004-05,2005-06 & 2006-07 - 3 - 3. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING PENALTY ORDER PASSED U/S.271(1)(C) OF THE ACT DATED 28/03/2008 FO R A.Y. 2004-05 WERE THAT VIDE AN ORDER U/S.143(3) DATED 22/12/2006, THE ASSESSED INCOME WAS DETERMINED AT NIL. THE ADDITIONS MADE ARE SUMMARIZ ED BELOW:- (I) ON ACCOUNT OF TOP LINER EXPENSES RS. 33 ,00,625 (II) ON ACCOUNT PROVISION FOR LANDSCAPING AND GARDENING EXPENSES RS. 3,00,000 (III) ON ACCOUNT OF LAND UTILIZATION EXPENSES RS. 9,20,609 (IV) ON ACCOUNT OF EXCESS CLAIM OF DEPRECIATION BY NOT REDUCING THE SUBSIDY RS.101,5 7,825 4. THE MATTER WAS CARRIED BEFORE THE TRIBUNAL AND V IDE AN ORDER DATED 30/11/2011 AS CITED SUPRA IN THE NOMENCLATURE, ALL THE SAID ADDITIONS WERE CONFIRMED. AT THIS JUNCTURE, IT IS WORTH TO MENTIO N THAT BEFORE THE ASSESSING OFFICER, A PLEA WAS RAISED THAT THE MATTE R OF QUANTUM ADDITION WAS SUBJUDICE BEFORE ITAT, HOWEVER, THE ASSESSING O FFICER WAS NOT CONVINCED AND, THEREFORE HELD THAT THE ASSESSEE HAD COMMITTED A DEFAULT OF FURNISHING INACCURATE PARTICULARS OF INCOME TO T HE EXTENT OF RS.1,46,79,059/-, THEREFORE THE MINIMUM PENALTY OF RS.52,66,112/- WAS IMPOSED. 5. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APP ELLATE AUTHORITY, SINCE THE ADDITIONS WERE AFFIRMED BY THE FIRST APPE LLATE AUTHORITY IN THE QUANTUM PROCEEDINGS, THEREFORE LEVY OF PENALTY WAS ALSO CONFIRMED. CORRIGENDUM IN ITA NOS.1519/AHD/07, 3332&3333/AHD/08 AND 2924 /AHD/09 M/S.GUJARAT ENVIRO PROTECTION & INFRASTRUCTURE LTD. VS. ITO ASST.YEARS 2004-05,2005-06 & 2006-07 - 4 - 6. WE HAVE HEARD THE SUBMISSIONS OF BOTH THE SIDES. WE HAVE ALSO PERUSED THE ORDERS OF THE AUTHORITIES BELOW IN THE LIGHT OF OUR JUDGEMENT PRONOUNCED FOR A.Y. 2004-05; EARLIER WHEREIN THE AD DITIONS IN QUESTION; WHICH WERE SUBJECT MATTER OF LEVY OF PENALTY; HAD B EEN CONFIRMED BY US. IT IS A TRITE LAW THAT MERELY CONFIRMATION OF AN AD DITION IN QUANTUM PROCEEDINGS DO NOT AUTOMATICALLY LEAD TO LEVY OF PE NALTY. AS FAR AS THE FACTS OF THE PRESENT APPEAL IS CONCERNED, THE ASSE SSEE HAS PROVIDED TOP LINER EXPENSES, LANDSCAPING EXPENSES, GARDENING EXP ENSES AND LAD UTILIZATION EXPENSES. THOUGH WE HAVE SAID THAT TH E PROPORTIONATE PROVISION IN THE YEAR UNDER CONSIDERATION WAS NOT P ROPER SINCE THE IMPUGNED EXPENSES HAVE NOT BEEN EITHER LAID OUT OR EXPENDED AND THAT THERE WAS NO INCIDENCE OF ACCRUAL OF LIABILITY, BUT THAT AFFIRMATION OF DISALLOWANCE WAS ON LEGAL GROUND ONLY. NEITHER IT IS THE CASE OF THE REVENUE NOR EVEN WE HAVE HELD THAT THE PROVISION WA S ALTOGETHER BOGUS OR THAT THE PROVISION WAS NOT SUBSTANTIATED BY BONA FIDE EVIDENCES. WHILE DISALLOWING; THOSE FACTS AND EVIDENCES WERE APPREC IATED BY THE TRIBUNAL, HOWEVER PRIMARILY ON THE GROUND THAT NO MONEY HAD A CTUALLY BEEN SPENT AND THAT THE PROVISION WAS NOT IN RESPECT OF THE AS CERTAINED OR CRYSTALLIZED LIABILITY THEREFORE THE SAID ADDITION WAS AFFIRMED . THAT WAS THE ONLY LEGAL GROUND ON THE BASIS OF WHICH THE IMPUGNED DIS ALLOWANCES WERE AFFIRMED. FROM THE MATERIAL PLACED, IT IS AN ADMIT TED FACTUAL POSITION THAT THOUGH THE ASSESSEE WAS NOT ABLE TO PROVE THE LEGAL CLAIM UPTO THE HILT BUT THAT CLAIM WAS NOT DISCARDED BY THE REVENUE DEPARTM ENT. DISPROVING WAS NOT ON THE GROUND OF FALSITY. THE ASSESSEE HAD OFFERED AN CORRIGENDUM IN ITA NOS.1519/AHD/07, 3332&3333/AHD/08 AND 2924 /AHD/09 M/S.GUJARAT ENVIRO PROTECTION & INFRASTRUCTURE LTD. VS. ITO ASST.YEARS 2004-05,2005-06 & 2006-07 - 5 - EXPLANATION AND THAT EXPLANATION WAS SAID TO BE A BONA FIDE EXPLANATION AS PER LAW, BUT THAT WAS OVERTURNED BY US. ALL T HE FACTS RELATING TO THE CLAIM WAS AVAILABLE ON RECORD AND NO PART OF IT WAS CONCEALED. THE REQUISITE MATERIAL AND INFORMATION WAS VERY MUCH AV AILABLE ON RECORD FOR THE PURPOSE OF THE COMPUTATION OF THE TOTAL INCOME OF THE ASSESSEE. THAT INFORMATION OR THE DATAS WHICH WERE PLACED ON RECOR D BY THE ASSESSEE WERE OTHERWISE CORRECT. 7. SO FAR AS THE REASON GIVEN IN MAKING SUCH A PROVISI ON IN RESPECT OF CERTAIN EXPENSES WAS THAT THE SAME WAS STATED TO B E BASED UPON CERTAIN CASE LAWS, HOWEVER WHILE DISAPPROVING THE IMPUGNED CLAIM WE HAVE FOUND THAT THE RELIANCE SO PLACED BY THE ASSESSEE W AS NOT MATCHING ON FACTS WITH THE FACTS OF THE PRESENT CASE. LIKEWISE , IN SO FAR AS THE CLAIM IN RESPECT OF THE EXCESSIVE DEPRECIATION IS CONCERNED, THAT TOO WAS NOT ADMISSIBLE AND ALSO DISTINGUISHABLE ON FACTS. BUT NOWHERE IT WAS NOTED BY US THAT THE CLAIM WAS FALSE OR BASED UPON CERTAI N UNTRUE FACTS. EVEN IT WAS NOT A CASE WHERE THE PARTICULARS THAT INACCURA TELY FURNISHED BY THE ASSESSEE. AN ANOTHER PLANK OF ARGUMENT IS THAT TH E TOTAL INCOME ASSESSED AS PER THE NORMAL COMPUTATION WAS AT RS.NIL AND THE REFORE THE PROVISIONS OF SECTION 115JB WERE INVOKED. IT IS TH EREFORE INFORMED THAT AS PER CALCULATION OF TAX FINALIZED VIDE IMPUGNED A SSESSMENT ORDER; ONLY THE MAT WAS IMPOSED. IN SUCH A SITUATION AS WELL T HE CONCEALMENT PENALTY MUST NOT BE IMPOSED, ARGUED BY LD.AR AND IN SUPPORT CITED CIT VS. NALWA SONS INVESTMENTS LTD. 327 ITR 543 (DELHI) . UNDER THE TOTALITY OF THE CIRCUMSTANCES OF THE CASE, WE CAN CONCLUDE T HAT THE ASSESSEES CASE CORRIGENDUM IN ITA NOS.1519/AHD/07, 3332&3333/AHD/08 AND 2924 /AHD/09 M/S.GUJARAT ENVIRO PROTECTION & INFRASTRUCTURE LTD. VS. ITO ASST.YEARS 2004-05,2005-06 & 2006-07 - 6 - IS OUT OF THE PURVIEW OF THE INACCURACY OF PARTICUL ARS AS ALSO OUT OF THE CLUTCHES OF THE CONCEALMENT OF INCOME. WE THEREFOR E DIRECT TO DELETE THE PENALTY. GROUNDS ARE ALLOWED. 8. IN THE RESULT ASSESSEES APPEAL NO.3332/AHD/2008 FOR A.Y. 2004-05 IS ALLOWED. SD/- SD/- ( A.K. GARODIA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEM BER AHMEDABAD; DATED 13 / 01 / 2012 (..), .)../ T.C. NAIR, SR. PS '+ , -. /'.0 '+ , -. /'.0 '+ , -. /'.0 '+ , -. /'.0/ COPY OF THE ORDER FORWARDED TO : 1. 12 / THE APPELLANT 2. -312 / THE RESPONDENT. 3. 4 / CONCERNED CIT 4. 4() / THE CIT(A)-I, SURAT 5. .7# -) , , / DR, ITAT, AHMEDABAD 6. # 89 / GUARD FILE. '+) '+) '+) '+) / BY ORDER, 3. - //TRUE COPY// : :: :/ // / ; ; ; ; ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION..10.1.2012 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 10.1.2012 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 13.1.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13.1.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER