M/s. Vishnu Prasad Bindal & Sons (HUF), Indore V. The ACIT 5(1), Indore

ITA 439/IND/2013

• Counselvise Citation: 43922714 RSA 2013
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 13-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRIKANT NAMDEO
• Keywords: Depreciation; Wrong claim
• Section: 154

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.439/IND/2013 A.Y. 2007-08 M/S. VISHNU PRASAD BINDAL & SONS HUF, INDORE PAN AAAHV 8334 C :: APPELLANT VS ACIT-5(1), INDORE :: RESPONDENT APPELLANT BY SHRI VIJAY BANSAL RESPONDENT BY SHRI SHRIKANT NAMDEO DATE OF HEARING 27.1.2014 DATE OF PRONOUNCEMENT 27.1.2014 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 8 TH FEBRUARY, 2013 OF THE LEARNED FIRST APPELLATE 2 AUTHORITY, INDORE, CONFIRMING THE PENALTY OF RS.12,58 ,900/- IMPOSED U/S 271(1)(C) OF THE ACT. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHRI VIJAY BANSAL, LEARNED COUNSEL FOR THE ASSESSEE, AND SHR I SHRIKANT NAMDEO, LD. SR. DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT DUE TO OVERSIGHT, DEPRE CIATION WAS WRONGLY CLAMED AT THE RATE OF 40% IN PLACE OF 30%. DURING HEARING, IT WAS ALSO CONTENDED THAT WHEN IT WAS BROUGHT TO THE NOTICE OF THE ASSESSEE, A REVISED DEPR ECIATION CHART/REVISED COMPUTATION OF THE INCOME WAS FILED BY THE ASSESSEE, THEREFORE, IN VIEW OF THE DECISION FROM HO N'BLE APEX COURT IN CIT VS. RELIANCE PETRO PRODUCTS P. LTD ., 322 ITR 158 (SC), NO PENALTY IS LEVIABLE. ON THE OTHER HAN D, THE LD. SR. DR DEFENDED IMPOSITION AS WELL AS CONFIRMATION OF PENALTY. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT 3 THE ASSESSEE IS ENGAGED IN THE BUSINESS OF ROAD CARRIER , CLAIMED DEPRECIATION @40% IN ITS PROFIT & LOSS ACCOUNT . AS PER THE REVENUE, IT WAS ALLOWABLE TO THE EXTENT OF 30 %. THE ASSESSEE WAS ASKED EXPLANATION. VIDE REPLY DATED 15.10.2009, THE ASSESSEE EXPLAINED THAT DUE TO OVERSIG HT, IT HAS BEEN WRONGLY CLAIMED @40% AND SUO MOTU FILED REVIS ED CHART OF DEPRECIATION. THE ASSESSING OFFICER, THUS, DISALLOWED RS.32,71,580/- AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. PENALTY PROCEEDINGS U/S 271(1)(C) OF TH E ACT WERE ALSO INITIATED. THE PENALTY OF RS.3,70,000/- WAS IMPOSED. ON APPEAL, THE PENALTY WAS SUSTAINED. THE LD. CIT(A), VIDE ORDER U/S 154 OF THE ACT, DIRECTED TO LEVY THE PENALTY ON THE TOTAL INCOME OF RS.32,71,580/-, WHICH IS UNDER CHALLENGE BEFORE THIS TRIBUNAL. ADMITTEDLY, INI TIALLY, THE ASSESSEE CLAIMED HIGHER RATE OF DEPRECIATION BUT WH EN IT WAS BROUGHT TO THE NOTICE OF THE ASSESSEE, A REVISE D COMPUTATION WAS FILED BY THE ASSESSEE. UNDER THESE FACT S, 4 EVEN IF IT IS ADMITTED THAT WRONG CLAIM OF DEPRECIATION WAS MADE, WHETHER THE PENALTY IS LEVIABLE U/S 271(1)(C) OF THE ACT. WE ARE OF THE VIEW THAT FOR IMPOSING PENALTY U/S 271(1)(C) OF THE ACT, EITHER THERE MUST BE CONCEALME NT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS THEREOF. IN ITS RETURN, THE ASSESSEE MADE THE CLAIM. IF THE ASSES SING OFFICER IS NOT SATISFIED WITH SUCH CLAIM, HE IS AT LIB ERTY TO DISALLOW THE SAME BUT MERE MAKING A WRONG CLAIM, IN ITS ELF, DOES NOT TANTAMOUNT TO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS AS WAS HELD BY THE HON'BLE APEX COURT IN RELIANCE PETRO PRODUCTS LTD. ( SUPRA) AND ALSO HON'BLE BOMBAY HIGH COURT IN CIT VS. SOMANI EVERGREE KNITS LTD. (2013) 352 ITR 592. THE RATIO LAI D DOWN IN CIT VS. AJAIB SINGH & CO., 253 ITR 630 (P & H) FU RTHER SUPPORTS THE CASE OF THE ASSESSEE. IN VIEW OF THESE F ACTS AND JUDICIAL PRONOUNCEMENTS, THE STAND OF THE LEARNED 5 CIT(A) IS REVERSED, CONSEQUENTLY, THE PENALTY, SO IMP OSED, IS DIRECTED TO BE DELETED. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT TH E CONCLUSION OF THE HEARING ON 27.1.2014. SD/- SD/- (R.C.SHARMA) (JOGIN DER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27.1.2014 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYAS!