MASALAWALA A.T.C, MUMBAI V. ITO 20(2)(2), MUMBAI

ITA 4954/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2621 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 06-10-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 30-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KUSUM BA NSAL
• Assessee Lawyers: SHARAD VAIDY A
• Keywords: Depreciation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH H ,MUMBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 4954/MUM/2014 (ASSESSMENT YEAR : 2006-07) MASALAWALA A.T.C AL- JAVARAT, 10 TH ROAD, J.V.P.D. SCHEME, JUHU, MUMBAI-400059. PAN: AAAFM0491R VS. ITO 20(2)(2), PIRAMAL CHAMBERS, PAREL, MUMBAI-400012. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SHARAD VAIDY A (AR) REVENUE BY : SHRI KUSUM BANSAL (DR) DATE OF HEARING : 06.10.2016 DATE OF PRONOUNCEMENT : 07.10.2016 O R D E R PER PAWAN SINGH, JM: 1. THIS APPEAL U/S 253 OF THE INCOME-TAX ACT IS DIRECT ED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-31, MUMBAI DATED 28.05. 2014 FOR ASSESSMENT YEAR (AY) 2006-07. WHEREIN THE LD. CIT(A) CONFIRMED THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR RELEVANT AY DECLARING TOTAL INCOME AS NIL. THE ASSE SSMENT WAS COMPLETED U/S 143(3) ON 19.12.2008 DETERMINING THE INCOME OF RS. 1,16,810/-. IN THE QUANTUM ASSESSMENT, EXCESSIVE WDV OF FURNITURE & FI XTURE AMOUNTING TO RS. 2,13,490/- WAS DISALLOWED. CONSEQUENTLY SHORT T ERM CAPITAL GAIN (STCG) OF RS. 1,16,812/- WAS BROUGHT TO TAX. ASSESS EE FILED APPEAL BEFORE THE CIT(A) BUT THE SAME WAS DISMISSED CONSEQUENT UP ON SECOND APPEAL WAS 2 ITA NO. 4954/M/2014- MASALAWALA A.T.C FILED BEFORE THIS TRIBUNAL AND THE SAME WAS ALSO DI SMISSED ON 24.01.2012. AFTER DISMISSAL OF THE APPEAL, THE AO ISSUED NOTICE FOR INITIATION OF PENALTY AND LEVIED A PENALTY OF RS. 64,050/- @ 100% OF THE TAX SOUGHT TO BE EVADED VIDE ORDER DATED 29.03.2012. AGGRIEVED BY THE ORDER OF PENALTY, ASSESSEE FILED APPEAL BEFORE THE CIT(A) BUT THE SAME WAS DIS MISSED, THUS THE PRESENT APPEAL IS FILED BEFORE US. 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE RE VENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD AR FOR ASSESSE E WOULD ARGUE THAT THE ASSESSEE HAS DISCLOSE ALL PARTICULARS OF INCOME IN THE RETURN, THERE WAS NO CONCEALMENT OF INCOME. MERE DISALLOWANCE OF CLAIM O F WDV OF CLAIM OF FURNITURE AND FIXTURE WOULD NOT LEAD TO FURNISHING OF INACCURATE PARTICULARS OF INCOME. ON THE OTHER HAND THE LD DR FOR REVENUE SUPPORTED THE ORDER OF AUTHORITIES BELOW AND WOULD ARGUE THAT THE APPEAL O F THE ASSESSEE ON THE QUANTUM ASSESSMENT WAS DISMISSED BY THIS TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES. THE OF THE FOR THE ONLY SHORT QUESTION FOR RE-DETERMINATION IN THE PRE SENT APPEAL IS WHETHER MERE EXCESSIVE DISALLOWANCE OF WDV OF FURNITURE & FIXTURE AMOUNTING TO RS. 2,13,490/- ATTRACT PENALTY OR NOT. IT IS SETTLE D POSITION OF LAW THAT MERE DISALLOWANCE IN THE QUANTUM ASSESSMENT WOULD NOT LE AD TO MAKING A CONCLUSION THAT THERE WAS CONCEALMENT OR FURNISHING OF INACCURATE PARTICULAR OF INCOME. FURTHER, WE HAVE NOTICED THAT ASSESSEE IN THE REPLY TO THE NOTICE OF PENALTY PROCEEDING HAS CATEGORICALLY EXPLAINED T HAT THE DEPRECIATION CLAIMED OF FURNITURE & FIXTURE WAS DISALLOWED TO SO ME EXTENT AND THERE WAS NO DELIBERATE CONCEALMENT AND THE ASSESSEE WAS NOT LIABLE FOR PENALTY. THUS, THE ASSESSEE HAS SUFFICIENTLY EXPLAINED AS PER EXPL ANATION-1 ATTACHED TO SECTION 271(1)(C) OF THE ACT. KEEPING IN VIEW THE P ECULIARITY OF THE FACT OF THE CASE, WE FIND THAT THE PENALTY LEVIED BY AO AND CONFIRMED BY THE 3 ITA NO. 4954/M/2014- MASALAWALA A.T.C CIT(A) IS NOT SUSTAINABLE IN THE EYES OF LAW, HENCE , THE ENTIRE PENALTY IS DELETED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 7 TH OCTOBER, 2016. SD/- SD/- (R.C.SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 07/10/2016 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/