ASHCO NIULAB INDUSTRIES LTD ( FORMELRY KNOWN AS ASHCO INDUSTRIES LTD), MUMBAI V. ACIT CIR 8(1), MUMBAI

ITA 6015/MUM/2010

• Counselvise Citation: 601519914 RSA 2010
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 03-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Keywords: Depreciation; Wrong claim

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: MUMBAI BEFORE SHRI G.E. VEERABHADRAPPA, PRESIDENT AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.6015/MUM/2010 (ASSESSMENT YEAR: 2003-04) M/S. ASHCO NIULAB INDUSTRIES LTD., (FORMERLY KNOWN AS:- ASHCO INDUSTRIES LTD.) LAB HOUSE, PLOT NO.F-13, LAB HOUSE, OPPOSITE SEEPZ, MIDC, ANDHERI (EAST), MUMBAI -400 093 ...... APPELLANT VS ACIT CIRCLE-8(1), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI -400 020 ..... RESPONDENT PAN: AABCA 2463 K APPELLANT BY: NONE RESPONDENT BY: SHRI P.K. B. MENON DATE OF HEARING: 23.11.2011 DATE OF PRONOUNCEMENT: 28.12.2011 O R D E R PER R.S. PADVEKAR, JM IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE IMPU GNED ORDER OF THE LD. CIT (A) -16, MUMBAI DATED 20.05.2010 FOR THE A.Y. 2003-04. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROU ND:- 1. LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE P ENALTY LEVIED BY LEARNED ASSESSING OFFICER U/S.271(1)(C) O F THE ACT TO THE TUNE OF ` 2,08,490/- ON THE PLEA THAT WRONG CLAIM OF HIGHER DEPRECIATION ON BUSINESS PREMISES AND VEHICL ES HAS RESULTED INTO TAX EVASION OF ` 6,25,470/- WHICH IS A CLEAR CASE OF FILING OF INACCURATE PARTICULARS OF INCOME RESULTING INTO CONCEALMENT OF INCOME. ITA 6015/MUM/2010 M/S. ASHCO NIULAB INDUSTRIES LTD. 2 2. THE SHORT ISSUE IN CONTROVERSY IS WITH REGARDS T O THE PENALTY LEVIED BY THE A.O. AND MADE ADDITION OF ` 2,08,490/-. 3. AS NONE WAS PRESENT FOR THE ASSESSEE NOR ANY ADJ OURNMENT APPLICATION WAS FILED, HENCE WE PROCEED TO DECIDE T HE APPEAL EX-PARTE QUA THE ASSESSEE ON MERIT AFTER HEARING THE LD. D.R. THE ASSESSEE- COMPANY IS ENGAGED IN THE BUSINESS OF DEALING IN AN ALYTICAL INSTRUMENTS. THE ASSESSEE FILED THE RETURN OF INCO ME DECLARING LOSS OF ` 95,13,165/-. THE RETURN WAS COMPLETED U/S.143(3) OF THE ACT. THE A.O. MADE THE ADDITION TOWARDS THE EXCESS CLAIM OF DEPRECIATION OF ` 5,67,335/-. THE A.O. HAS NOTED THAT THE ASSESSEE H AS CLAIMED THE DEPRECIATION @ 25% AS AGAINST ADMISSIBLE RATE OF 10 % ON THE WDV OF THE BLOCK WHICH IS ` 25,78,012/- AND THERE WAS ADDITION OF ` 2,45,063/-. THE ASSESSEE HAD CLAIMED THE DEPRECIAT ION OF ` 7,05,769/- ON THE ENTIRE BLOCK. THE ASSESSEE HAD A LSO CLAIMED THE DEPRECIATION ON THE VEHICLES, WHICH @ 25% AS AGAINS T ADMISSIBLE RATE OF 20%. THE ASSESSEE ACCEPTED BEFORE THE A.O. THAT IT WAS A CLERICAL MISTAKE IN CLAIMING THE DEPRECIATION AND HE REQUEST ED TO THE A.O. TO DISALLOW WRONGLY CLAIMED EXCESS DEPRECIATION. THE A.O. MADE THE ADDITION AND DISALLOWED THE EXCESS CLAIM AND ALSO I NITIATED THE PENALTY PROCEEDINGS U/S.271(1)(C) AND LEVIED THE PENALTY OF ` 2,08,490/- ON THE REASON FOR FURNISHING THE INACCURATE PARTICULAR S OF INCOME. IT APPEARS THAT THE ASSESSEE HAS CHALLENGED THE ISSUE BEFORE THE LD. CIT (A). THOUGH THE FACTS ARE NOT COMING FROM THE CIT (A)S ORDER BUT WHAT WE FIND THAT THE ISSUE OF THE DEPRECIATION WAS A DE BATABLE ONE AND THE ASSESSEE HAD FILED AN APPLICATION U/S.154, BUT WITH OUT DISPOSING OFF THE SAME THE A.O. LEVIED THE PENALTY U/S.271(1)(C) OF THE ACT AND THE CIT (A) CONFIRMED THE SAME. 4. FROM THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT IT IS A MISTAKE AS CLAIMED BY THE ASSESSE E. IN OUR OPINION, THE ASSESSEES CASE IS SQUARELY COVERED BY THE PRIN CIPLES LAID DOWN BY ITA 6015/MUM/2010 M/S. ASHCO NIULAB INDUSTRIES LTD. 3 THE HONBLE SUPREME COURT IN THE CASE OF RELIANCE P ETRO CHEMICALS PRODUCTS PVT. LTD. (2010) 322 ITR 158. IN THE SAID DECISION THEIR LORDSHIPS HAVE HELD THAT MERELY BECAUSE WRONG CLAIM IS MADE, WHICH IS OTHERWISE BONA FIDE AND WHICH IS REJECTED, THAT CANNOT BE THE GROUND FOR LEVYING THE PENALTY U/S.271(1)(C). WE F IND NO JUSTIFICATION TO SUSTAIN THE PENALTY. ACCORDINGLY, WE DELETE THE SAME. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 8TH DECEMBER, 2011. SD/- SD/- ( G.E. VEERABHADRAPPA ) PRESIDENT ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE : 28TH DECEMBER, 2011 ORDER PRONOUNCED IN THE OPEN COURT ON 28.12. 2011 SD/- SD/- (JSR) (RSP) COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) -16, MUMBAI. 4) THE CIT-8, MUMBAI. 5) THE D.R. A BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN