ITO, New Delhi V. M/s. Fixopan Machines Pvt. Ltd., New Delhi

ITA 4170/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81846 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2014
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 27-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 08-07-2013
• Court: TRIBUNAL
• Department Lawyers: DR SUDHA KUMARI
• Assessee Lawyers: S S KALRA
• Keywords: Depreciation
• Section: 132

Judgement Text

0 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : B NEW DELHI BEFORE SHRI J.SUDHAKAR REDDY, A . M . AND SHRI C.M. GARG, J.M. ITA NO. 4170 /DEL/201 3 AY : - 200 8 - 09 ITO, WARD 11(2) VS. FIXOPAN MACHINES PVT.LTD. NEW DELHI S 35, G.K. PART I NEW DELHI PAN: AAACF 1367 L (APPELLANT) (RESPONDENT) A SSESSEE T BY : SHRI S .S.KAL R A, C.A. RE VENUE BY : DR.SUDHA KUMARI, CIT, DR O R D E R PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGAINST THE ORDER OF THE LD. CIT (A) X I II, NEW DELHI DT. 9.0 4 .201 3 PERTAINING TO THE AY 2008 - 09 . 2. THE FIRST APPELLATE AUTHORITY CANCELLED THE PENALTY LEVIED U/S 271 AAA R.W.S. 274 OF THE ACT. 3. LD.D.R. DR.SUDHA KUMARI, CIT, DR SUBMITS THAT THE ASSESSEE HAD DISCLOSED INCOME DURING THE COURS E OF SEARCH U/S 132 OF THE ACT, BUT, HAS NOT SPECIFIED THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED NOR HAS SUBSTANTIATED THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED AS PER THE REQUIREMENTS OF SUB SECTION (2) OF S.271 AAA OF THE ACT. SHE SU BMITS THAT THE FIRST APPELLATE AUTHORITY HAS COMMITED AN ERROR IN HOLDING OTHERWISE. 4. LD.COUNSEL FOR THE ASSESSEE SHRI SS KAL R A SUBMITS THAT THESE TWO CONDITIONS WERE FULFILLED BY THE ASSESSEE AND THE LD.CIT(A) HAS ON EXAMINING THE SAME CAME TO A CONCLU SION THAT THE PENALTY HAS TO BE CANCELLED. ITA 4170 /DEL/201 3 AY 2008 - 09 FIXOPAN MACHINES PVT.LTD. 2 ATTENTION WAS DRAWN TO THE PENALTY ORDER. A SYNOPSIS WAS ALSO FILED RELYING ON A NUMBER OF CASE LAWS. 5. AFTER HEARING RIVAL SUBMISSIONS, WE HOLD AS FOLLOWS. 6. IN PARA 2 OF THE IMPUGNED ORDER, THE AO HAS OBSERVED AS FOLLOWS. I N RESPONSE TO NOTICE U/S 142(1), THE ASSESSEE FILED RETURN OF INCOME ON 10.6.2009 DECLARING INCOME OF RS.78,70,720/ - WHICH INCLUDED ADDITIONAL INCOME OF RS.43,55,810/ - SURRENDERED BY THE ASSESSEE ON ACCOUNT OF DISALLOWANCE OF EXPENSE S CLAIMED IN THE PROFIT AND LOSS ACCOUNT AGAINST WHICH ASSESSEE DID NOT HAVE ANY BILL OR ANY SUPPORTING DOCUMENTS. BESIDES THIS, ANOTHER ADDITION OF RS.10,50,093/ - WAS MADE BY THE AO ON ACCOUNT OF EXCESS DEPRECIATION. 6.1. A PERUSAL OF THE ABOVE DEMONSTRATES, THAT THE UNDISCLOSED INCOME WAS BECAUSE OF DISALLOWANCE OF EXPENSES CLAIMED. HENCE IN OUR VIEW THE ASSESSEE HAS SATISFIED THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED AND ALSO HAS SUBSTANTIATED THE SAME. THE AO HAS NOT DISPUTED THIS SUB MISSION OF THE ASSESSEE. UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT THE FIRST APPELLATE AUTHORITY WAS RIGHT IN DELETING THE PENALTY. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH OCTOBER,2014. SD/ - SD/ - ( C.M. GARG ) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 28 TH OCTOBER , 2014 *MANGA ITA 4170 /DEL/201 3 AY 2008 - 09 FIXOPAN MACHINES PVT.LTD. 3 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5.DR; 6.GUARD FILE BY ORDER ASST. REGISTRAR