ASST CIT CEN CIR 38, MUMBAI V. R.C.C. (SALES ) P.LTD, MUMBAI

ITA 5409/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2800 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2015
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 12-03-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 07-08-2013
• Court: TRIBUNAL
• Department Lawyers: PRAKASH L PATH AK
• Assessee Lawyers: DR PRAYAG JHA
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER I.T.A. NO. 5409/M/2013 (AY: 2005 - 2006 ) ACIT, CC - 38, R.NO.32(1), GROUND FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. / VS. M/S. R.C.C. (SALES) PVT LTD, MALHOTRA HOUSE, 4 TH FLOOR, OPP. GPO, FORT, MUMBAI 400 001. ./ PAN : AAACR9675D ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI PRAKASH L. PATHAK / RESPONDENT BY : SHRI PRATEEK JHA & DR. PRAYAG JHA / DATE OF HEARING : 03.11.2015 / DATE OF PRONOUNCEMENT : 03.11.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 7.8.2013 IS AGAINST THE ORDER OF THE CIT (A) - 41, MUMBAI DATED 31.5.2013 FOR THE ASSESSMENT YEAR 2005 - 2006. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCERS OF THE CASE AND IN LAW, THE LD CIT (A) IS JUSTIFIED IN DELETING THE PENALTY LEVIED WHILE THE ASSESSEE DID NOT FURNISH THE TRUE PICTURE OF HIS INCOME IN HIS RETURN OF INCOME AND NEITHER HE HIMSELF DISCLOSED THE INCOME ON WHICH ADDITIONS W ERE MADE DURING THE ASSESSMENT PROCEEDINGS BEFORE THE ENQUIRING OF THE ASSESSING OFFICER WAS STARTED. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) IS JUSTIFIED IN DELETING THE PENALTY LEVIED ON THE DISALLOWANCE U/ S 35AB OF RS. 57,50,000/ - , WHILE THE ASSESSEE WAS ELIGIBLE FOR SUCH CLAIM TILL AY 2002 - 2003 ONLY AND HE BENEFITED HIMSELF BY MAKING SUCH CLAIM IN AY 2005 - 2006 ALSO, WHICH SHOWS THAT THE INTENTION OF THE ASSESSEE IS NOT BONAFIDE. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) IS JUSTIFIED IN DELETING THE PENALTY LEVIED ON ACCOUNT OF EXCESS CLAIM OF DEPRECIATION OF RS. 82,144/ - ON PLANT AND MACHINERY (IE ACCESSORIES ATTACHED TO COMPUTERS VIZ PRINTERS ETC) WHILE THE ASS ESSEE HAS GIVEN INACCURATE PARTICULARS OF INCOME IE CLAIMED ASSETS TO BE A PART OF BLOCK OF ASSETS TO WHICH IT ACTUALLY DOES NOT BELONG. 2. BEFORE US, AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER PASSED THE PENALTY ORDE R U/S 271(1)(C) OF THE ACT WHEN THERE IS NO SATISFACTION RECORDED BY THE AO WHILE MAKING ADDITIONS IN ASSESSMENT MADE ON 31.12.2010. IN THIS REGARD, BRINGING OUR ATTENTION TO ALL THE PARAGRAPHS OF THE 2 ASSESSMENT ORDER IN GENERAL AND PARA 9 IN PARTICULAR, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS NO REFERENCE TO THE NECESSITY OF INITIATING THE PENALTY U/S 271(1)(C) OF THE ACT. ON PERUSAL OF THE SAID PARA 9, WE FIND IT RELEVANT TO EXTRACT THE SAME WHICH READS AS UNDER: 9. ASSESSED ACCORDINGLY. GIVEN CREDIT FOR TAXES PAID AFTER DUE VERIFICATION. ISSUED DEMAND NOTICE (DN) AND CHALLAN / RO. 3. FROM THE ABOVE, IT IS SELF - EXPLANATORY. THERE IS NO REFERENCE TO THE AOS SATISFACTION FOR ISSUE OF NOTICE U/S 271(1)(C) OF THE ACT FOR LEVY OF PENALTY U NDER THE SAID SECTION. IN EFFECT, THE PENALTY ORDER PASSED ON 30.3.2012 IS WITHOUT ANY SATISFACTION ON THE CONCEALMENT OF INCOME. IN THE ABSENCE OF THE SAME, IT IS NOT KNOWN AS TO WHY THE PENALTY IS LEVIED IE WHETHER IT IS FOR CONCEALMENT OF INCOME O R FURNISHING OF INACCURATE PARTICULARS OF INCOME. THUS, THERE IS AN AMBIGUITY IN THE MIND OF THE OFFICERS ON THE ALLEGATION OF CONCEALMENT MADE OUT BY THE AO IN THE PENALTY ORDER. SUCH ALLEGATION SHOULD NOT BE MADE WHEN THERE IS NO SATISFACTION ABOUT T HE SAME RECORDED DURING THE ASSESSMENT PROCEEDINGS. FURTHER, WE HAVE PERUSED THE JUDGMENT OF THE BOMBAY HIGH COURT IN THE CASE OF CIT VS. DAJIBHAI KANJIBHAI [1991] 189 ITR 41 (BOM.) WHICH IS IN SUPPORT OF THE ASSESSEE. THE SAID JUDGMENT OF THE JURISDICTI ON HIGH COURT (SUPRA) IS RELEVANT FOR THE LEGAL PROPOSITION THAT PENAL PROVISIONS U/S 271(1)(C) ARE NOT ATTRACTED WHEN THERE IS NO EVIDENCE TO SHOW THAT ITO / AO WAS SATISFIED ABOUT THE CONCEALMENT OF INCOME IN THE COURSE OF ASSESSMENT PROCEEDINGS. IN SUC H CIRCUMSTANCES, IMPOSING PENALTY IS NOT IN ACCORDANCE WITH LAW AND DESERVES TO BE QUASHED. WITHOUT GOING TO THE OTHER ASPECTS OF THE ARGUMENTS AND THE COUNTER ARGUMENTS, WE ARE OF THE OPINION THAT THE ORDER OF THE CIT (A) IS FAIR AND REASONABLE AND IT DO ES NOT CALL FOR ANY INTERFERENCE ON THESE TECHNICAL GROUNDS. ACCORDINGLY, GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD NOVEMBER, 2015. S D / - S D / - ( RAM LAL NEGI ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 3.11 .2015 . . ./ OKK , SR. PS 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI