Neeraj Gupta, Delhi V. ITO, New Delhi

ITA 6087/DEL/2012

• Counselvise Citation: 608720114 RSA 2012
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 07-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS RENUKA JAIN GU PTA
• Assessee Lawyers: S C JAIN
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC: NEW DELHI) BEFORE SHRI I. C. SUDHIR, JUDICIAL MEMBER ITA NO: 6 087/DEL/2012 (ASSESSMEN T YEAR: 2007-08) NEERAJ GUPTA VS. ITO A-154, STREET NO- 4. WARD-36(3) VIKAS MARG, SHAKKARPUR NEW DELHI DELHI ACKPG2591G (APPELLANT) (RESPONDENT) ASSESSEE BY :SHRI S. C. JAIN, CA REVENUE BY : MRS. RENUKA JAIN G UPTA, SR. D.R ORDER PER I. C. SUDHIR, JUDICIAL MEMBER: THE ASSESSEE HAS QUESTIONED FIRST APPELLAT E ORDER ON SEVERAL GROUNDS WHERE BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS UPHELD THE PENALTY U/S 271(1) (C) OF THE ACT LEVIED BY THE ASSESSING OFFICER AT RS. 1,38,637/-. 2. THE CONTENTION OF THE LD. AR REMAINED THAT THE AS SESSING OFFICER HAD MADE ADDITION OF RS.1,36,798/- ON ACCOUNT OF DIS ALLOWANCE OF DEPRECIATION ON CARS ON THE BASIS THAT THESE CARS W ERE NOT IN USE AS ITA NO. 6087/DEL/12 2 RUNNING EXPENSES OF THESE CARS WERE NOT BOOKED/DEBI TED IN PROFIT AND LOSS ACCOUNT DURING THE YEAR. THE LD. AR SUBMITTED THAT WHEN THE DEPRECIATION ON CAR WAS DULY RECODED IN THE BOOKS A ND IN AUDITED ACCOUNTS AS WELL AS IN BALANCE-SHEET THEN THERE IS NO CONCEALMENT TO ATTRACT THE PENAL PROVISIONS. IN SUPPORT, HE PLACED RELIANCE ON THE FOLLOWING DECISIONS:- CIT VS. K.R CHINNI KRISHNA CHELTY (2000) 246 ITR 121 (MADRAS). CIT VS. PREMIERE BEVERAGES LTD (2000) 244 ITR 598 (K ERALA). CIT VS. INDER BISLERS 240 ITR 943 (MADRAS), ETC. 3. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND OPPOSED THE APPEAL WITH THIS CONTENTION THAT IT IS A QUESTI ON OF FACT TO DRAW AN INFERENCE THAT THERE WAS CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS THEREOF ON THE PA RT OF THE ASSESSEE TO ATTRACT THE PENAL PROVISIONS U/S 271(1) (C) OF THE ACT. SHE SUBMITTED THAT IN THE PRESENT CASE IT IS APPARENT FROM THE FA CTS THAT DEPRECIATION ON CARS WAS WRONGLY CLAIMED DESPITE THIS KNOWN FACT TO THE ASSESSEE THAT THOSE CARS WERE NOT USED AS NO EXPENDITURE ON ACCOUNT OF FUEL ETC. WITHOUT WHICH IT WAS NOT POSSIBLE TO RUN THE CARS, WAS CLAIMED DURING THE YEAR. ITA NO. 6087/DEL/12 3 4. CONSIDERING THE ABOVE SUBMISSION I AM OF THE VIE W THAT THE CLAIM OF DEPRECIATION ON CARS IN THE PRESENT CASE W AS A DEBATABLE ISSUE SINCE THERE IS NO DISPUTE THAT CARS WERE READ Y TO USE AND THE CLAIMED DEPRECIATION ON THESE CARS HAVE BEEN DISALL OWED BY THE ASSESSING OFFICER ONLY ON THE BASIS THAT NO EXPENDI TURE IN RUNNING THOSE CARS DURING THE YEAR WERE CLAIMED. UNDER THE SE FACTS AND CIRCUMSTANCES I AM OF THE VIEW THAT IT WAS NOT A CL EAR CASE TO ARRIVE AT A CONCLUSION BEYOND DOUBT THAT THE ASSESSEE BY C LAIMING THE DEPRECIATION ON THOSE CARS HAD CONCEALED PARTICULAR S OF INCOME OR HAD FURNISHED INACCURATE PARTICULARS THEREOF TO ATT RACT PENAL PROVISIONS U/S 271(1) (C) OF THE ACT. IT IS AN EST ABLISHED PROPOSITION OF LAW THAT FOR APPLICATION OF A PENAL PROVISION U/ S 271 (1) A CLEAR FINDING FOR REQUISITE VIOLATION IS REQUIRED TO BE M ADE BEYOND DOUBT. I THUS DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE T HAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AS DISCUSSED ABOVE NO PENAL ACTION U/S 271(1) (C) OF THE ACT CAN BE TAKEN AGAINST THE ASSESSEE ON THE DISALLOWANCE OF THE CLAIMED DEPRECIATION. WHILE SE TTING ASIDE ORDERS OF THE AUTHORITIES BELOW IN THIS REGARD, I D IRECT THE ASSESSING ITA NO. 6087/DEL/12 4 OFFICER TO DELETE THE PENALTY OF RS.38,637/- LEVIED U/S 271(1) (C) OF THE ACT. THE RELATED GROUNDS ARE ACCORDINGLY ALLOW ED. 13. IN RESULT, APPEAL IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 3 0 TH AUGUST/ 2013. SD/- (I. C. SUDHIR) JUDICIAL MEMBER DATED THE 30 TH DAY OF AUGUST, 2013 R. NAHEED COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. CIT (ITAT), NEW DELHI. AR, ITAT NEW DELHI . ITA NO. 6087/DEL/12 5