M/S. J.K.FOOTWEAR PVT. LTD. , MUMBAI V. ITO-10(2)(1), MUMBAI

ITA 5178/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5239 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 07-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DINESH RAJGOR
• Keywords: Depreciation; Wrong claim; Bonafide mistake
• Section: 271(1)(c); 201

Judgement Text

, , !'#,$%!'&! IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F, MUMBAI BEFORE SHRI PRAMOD KUMAR, VICE-PRESIDENT & SHRI VIKAS AWASTHY, JUDICIAL MEMBER !. 5178 / /201 9 (%-. . 2010-11 ) ITA NO.5178/MUM/2019 (A.Y.2010-11) !. 5179 / /201 9 (%-. . 2011-12 ) ITA NO.5179/MUM/2019 (A.Y.2011-12) !. 5180 / /201 9 (%-. . 2013-14 ) ITA NO.5180/MUM/2019 (A.Y.2013-14) M/S. J.K. FOOTWEAR PVT. LTD. PLOT NO.61, MAROL CO-OP INDL. ESTATE, OPP.WIBS BREAD CO., SAGBAG, SAKINAKA, ANDHERI(E), MUMBAI 400 059 PAN: AACCR 8689R ...... #/ / APPELLANT - VS. THE INCOME TAX OFFICER-10(2)(1), 3 RD FLOOR, AAYKAR BHAVAN, M.K.ROAD, MUMBAI 400 020. ..... %0/ RESPONDENT #/1/ APPELLANT BY : SHRI DINESH RAJGOR %01/ RESPONDENT BY : MS. USHA GAIKWAD ! -2%0 #/ DATE OF HEARING : 08/02/2021 34 2%0 #/ DATE OF PRONOUNCEMENT : 03 /05/2021 &/ ORDER PER VIKAS AWASTHY, JM: THESE THREE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-17, MUMBAI [IN SHORT THE CIT(A)] DATED 2 ITA NO.5178/MUM/2019 (A.Y.2010-11) ITA NO.5179/MUM/2019 (A.Y.2011-12) ITA NO.5180/MUM/2019 (A.Y.2013-14) 29/05/2019 COMMON FOR ASSESSMENT YEARS 2010-11, 201 1-12 AND 2013-14, CONFIRMING LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). SINCE, THE FACTS GERMANE TO LEVY OF PENALTY IN ALL THE THREE IMPUGNED ASSESSMENT YEARS ARE IDENTICAL THESE APPEALS ARE TA KEN UP TOGETHER FOR ADJUDICATION. 2. SHRI DINESH RAJGOR APPEARING ON BEHALF OF THE AS SESSEE SUBMITTED THAT IN ALL THE THREE IMPUGNED ASSESSMENT YEARS, PENALTY U/S. 2 71(1)(C) OF THE ACT HAS BEEN LEVIED ON DISALLOWANCE OF DEPRECIATION. THE ISSUE I N PRESENT APPEALS IS SQUARELY COVERED BY THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2012-13. IN ASSESSMENT YEAR 2012-13 THE ASSESSEE HAD CLAIMED DE PRECIATION ON FACTORY BUILDING. ADMITTEDLY, NO BUSINESS ACTIVITY WAS CARRIED OUT BY THE ASSESSEE AND THE ASSESSEE HAD CLAIMED DEPRECIATION ON FACTORY BUILDING THAT W AS LET OUT. DURING ASSESSMENT PROCEEDINGS THE ASSESSEE REALISED ITS MISTAKE AND F ILED REVISED COMPUTATION. THE DEPRECIATION WAS DISALLOWED AS THE BUILDING WAS LET OUT AND THE ASSESSEE HAD CLAIMED STANDARD DEDUCTION U/S.24 OF THE ACT. PENALTY UNDER SECTION 271(1)(C) OF THE ACT WAS LEVIED. AFTER BEING UNSUCCESSFUL IN FIRST APPELLAT E PROCEEDINGS, THE ASSESSEE CARRIED THE ISSUE IN APPEAL BEFORE THE TRIBUNAL IN ITA NO.3 563/MUM/2017. THE TRIBUNAL VIDE ORDER DATED 08/03/2019 DELETED THE PENALTY. THE FA CTS IN ALL THE THREE IMPUGNED ASSESSMENT YEARS ARE IDENTICAL. THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT HAS BEEN LEVIED IN RESPECT OF DISALLOWANCE OF DEPRECIAT ION. 3. PER CONTRA, MS. USHA GAIKWAD REPRESENTING THE DE PARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER AND PRAYED FOR DISMISSI NG THE APPEALS OF ASSESSEE. HOWEVER, THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON SIMILAR SET OF FACT S HAS BEEN DELETED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2012-13. 4. BOTH SIDES HEARD, ORDERS OF AUTHORITIES BELOW EX AMINED. THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT HAS BEEN LEVIED IN THE IMPUGNED ASSESSMENT YEARS ON ACCOUNT OF WRONG CLAIM OF DEPRECIATION ON FACTORY B UILDING THAT WAS LET OUT. WE FIND 3 ITA NO.5178/MUM/2019 (A.Y.2010-11) ITA NO.5179/MUM/2019 (A.Y.2011-12) ITA NO.5180/MUM/2019 (A.Y.2013-14) THAT THE CO-ORDINATE BENCH IN ASSESSEES OWN CASE F OR ASSESSMENT YEAR 2012-13 HAS DELETED PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON IDENTICAL SET OF FACTS BY OBSERVING AS UNDER:- 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D MATERIAL ON RECORD. UNDISPUTEDLY, THE ASSESSEE HAS WRONGLY CLAIMED DEPR ECIATION ON THE BUILDING LET OUT BY IT. HOWEVER, THE FACTS ON RECORD REVEAL THAT S IMILAR CLAIM WAS MADE BY THE ASSESSEE IN PRECEDING ASSESSMENT YEARS AS WELL. FUR THER, IT IS SEEN FROM THE MATERIALS PLACED BEFORE US, THE RETURN OF INCOME FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 201415 CLAIMING DEPRECIATION WAS SUBSEQUENTLY REVI SED DISALLOWING THE DEPRECIATION. FURTHER, IN THE RETURN OF INCOME FILE D FOR THE ASSESSMENT YEAR 201516, THE ASSESSEE HAS NOT CLAIMED ANY DEPRECIATION. KEEP ING IN VIEW THE AFORESAID FACTS, ASSESSEES EXPLANATION THAT DEPRECIATION CLAIMED IN THE IMPUGNED ASSESSMENT YEAR WAS DUE TO AN INADVERTENT AND BONAFIDE MISTAKE IS A CCEPTABLE. THAT BEING THE CASE, WE ARE INCLINED TO DELETE THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT AMOUNTING TO ` 2,28,458. GROUND RAISED IS ALLOWED. THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT BROUGHT BEFORE US ANY DISTINGUISHING FACT SO AS TO FORCE US TO TAKE A DIFFERENT VIEW. FA CTS AND REASON FOR CLAIMING DEPRECIATION ON BUILDING BEING PARI MATERIA IN THE IMPUGNED ASSESSMENT YEARS, WE FIND NO REASON TO DEVIATE FROM THE VIEW ALREADY TAK EN BY THE COORDINATE BENCH IN DELETING PENALTY ON SUCH DISALLOWANCE. ERGO, THE FI NDINGS OF CIT(A) ARE REVERSED AND THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE A CT ON DISALLOWANCE OF DEPRECIATION IS DELETED FOR PARITY OF REASONS. 5. IN THE RESULT, APPEALS OF THE ASSESSEE FOR ASSES SMENT YEARS 2010-11, 2011-12 AND 2013-14 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON MONDAY THE 3RD DAY OF MAY, 2021. SD/- SD/- (PRAMOD KUMAR) (VIKAS AWASTH Y) / VICE PRESIDENT $%!' / JUDICIAL MEMBER / MUMBAI, 6-/ DATED 03/05/2021 VM , SR. PS (O/S) 4 ITA NO.5178/MUM/2019 (A.Y.2010-11) ITA NO.5179/MUM/2019 (A.Y.2011-12) ITA NO.5180/MUM/2019 (A.Y.2013-14) COPY OF THE ORDER FORWARDED TO : 1. #/ / THE APPELLANT , 2. %0 / THE RESPONDENT. 3. 70 ( )/ THE CIT(A)- 4. 70 CIT 5. 89%0%- , . . . , / DR, ITAT, MUMBAI 6. 9:;< / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI