Maruti Tractors Pvt.Ltd., Ahmedabad V. The Income tax Officer,Ward-4(4), Ahmedabad

ITA 677/AHD/2012

• Counselvise Citation: 67720514 RSA 2012
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-09-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 21-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: S N DIVATIA
• Keywords: Depreciation; Wrong claim; Unabsorbed depreciation; Bonafide mistake

Judgement Text

, , , , , , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD .., BEFORE SHRI B.P.JAIN, ACCOUNTANT MEMBER !./ I.T.A.NO.677/AHD/2012 ( # $%# # $%# # $%# # $%# / / / / ASSESSMENT YEAR : 2007-08) MARUTI TRACTORS PVT.LTD. C/O. YOGESH RICE MILL COMPOUND VILL.ANASAN, NARODA DEGHAM ROAD AHMEDABAD 382 330 / VS. THE ITO WARD-4(4) AHMEDABAD & !./' !./ PAN/GIR NO. : AABCM 6285 B ( &( / // / APPELLANT ) .. ( )*&( / RESPONDENT ) &( + / APPELLANT BY : SHRI S.N. DIVATIA, A.R. )*&( , + / RESPONDENT BY : SHRI B.L. YADAV, SR.D.R. -$. , /0 / / / / DATE OF HEARING : 18.09.2013 12% , /0 / DATE OF PRONOUNCEMENT : 18.09.2013 3 / O R D E R THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE LD.CIT(APPEALS)-VIII, AHMEDABAD DATED 30/01/2012 FO R THE ASSTT.YEAR 2007-08. THE ASSESSEE HAS RAISED THE FOLLOWING GRO UNDS OF APPEAL:- 1.1. THE ORDER PASSED U/S.250 ON 30.1.2012 FOR A.Y. 2007 -08 BY CIT(A)-VIII, ABAD UPHOLDING THE PENALTY OF RS.56 ,636/- LEVIED U/S.271(1)(C) BY AO IS WHOLLY ILLEGAL, UNLAW FUL AND WITHOUT JURISDICTION. 1.2. THE LD.CIT(A) HAS ERRED IN NOT CONSIDERING FULLY AN D PROPERLY THE SUBMISSION MADE BY THE APPELLANT. 2.1. THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN UPHOLDING PENALTY OF RS.56,636 LEVIED U/S.271(1) (C) BY AO. ITA NO.677/AHD/ 2012 MARUTI TRACTORS PVT.LTD. VS.ITO ASST.YEAR 2007-08 - 2 - 2.2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT HAVE UPHELD THE PENALT Y OF RS.56,636 LEVIED BY AO. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE BRIEF FINDINGS OF ASSESSING OFFICER AS REPRODUCED IN THE ORDER OF THE LD.CIT(A) AS UNDER: 1. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS NOTICED FROM THE DETAILS SUBMITTED IN RESPECT OF BROUGHT FO RWARD/SET OFF OF UNABSORBED DEPRECIATION, THAT THE ASSESSEE COMPANY HAS WRONGLY CLAIMED SET OFF OF UNABSORBED DEPRECIATION FOR A.Y. 2000-01 AMOUNTING TO RS.1,68,259/- FROM THE TOTAL INCOME OF THE YEAR UNDER CONSIDERATION THOUGH THERE WAS NOT ANY UNABSORBED D EPRECIATION IS AVAILABLE FOR SET OFF. IN THIS REGARD, THE ASSE SSEE COMPANY HAS SUBMITTED VIDE ITS LETTER DATED 10.12.2009 THAT THI S SET OFF UNABSORBED DEPRECIATION IS CLAIMED WRONGLY AND BY U NINTENTIONAL MISTAKE WHILE FILING RETURN OF INCOME. THE AO WHIL E FINALIZING THE ASSESSMENT, DISALLOWED TO SET OFF OF UNABSORBED DEP RECIATION OF A.Y. 2000-01 AMOUNTING TO RS.1,68,259/-. THE ASSES SEE COMPANY IS ENGAGED IN THE TRADING BUSINESS OF TRACTORS. B. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, OU T OF AFOREMENTIONED ADDITIONS THE PENALTY PROCEEDINGS WE RE INITIATED ON THE WRONGLY CLAIMED UNABSORBED DEPRECIATION OF R S.1,68,259/-. DUE TO CHANGE OF INCUMBENT OF OFFICE, A FRESH SHOW CAUSE NOTICE U/S.271(1)(C) ALLOWING FRESH OPPORTUNITY OF BEING H EARD TO THE ASSESSEE COMPANY W3AS ISSUED ON 01.06.2010 WHICH WA S DULY SERVED UPON THE ASSESSEE WITH A REQUEST TO SUBMIT E XPLANATION IN THIS REGARD WITHIN A WEEK ON RECEIPT OF SAID NOTICE . IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE COMPANY HAS REPLIED V IDE ITS LETTER DATED 15.06.2010 THAT THE DEDUCTION IN COMPUTATION OF INCOME FOR SET OFF OF CARRY FORWARD UNABSORBED DEPRECIATIO N/BUSINESS LOSS IS WRONGLY MADE AS A MISTAKE IN COMPUTING INCOME, T HIS FACT IS ACCEPTED BY US AND IT IS A HUMAN ERROR FILING RETUR N OF INCOME BY E- FILING WHICH IS NEW ONE SO MISTAKE WAS UNINTENTIONA LLY COMMITTED. WE REQUEST YOU HONOUR NOT TO INITIATE ANY PENALTY P ROCEEDINGS U/S.271(1)(C) AS THERE IS A UNINTENTIONAL MISTAKE I N COMPUTATION A HUMAN ERROR AND WE ARE PAYING THE TAXES AS ACCEPTIN G OUR MISTAKE IN DUE TIME. ITA NO.677/AHD/ 2012 MARUTI TRACTORS PVT.LTD. VS.ITO ASST.YEAR 2007-08 - 3 - C. THUS, THERE IS NO DISPUTE OVER THE FACT THAT TH E ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF ITS INCOME TO T HE TUNE OF RS.168,259/- BY MAKING INCORRECT CLAIM FOR UNABSORB ED DEPRECIATION U/S.72 OF THE ACT. UNDER THE CIRCUMST ANCES, I AM SATISFIED THAT THE ASSESSEE HAS UNDER STATED ITS IN COME TO THE TUNE OF RS.1,68,259/- AND BY THAT MEANS INCORRECT PARTICULA RS OF ITS INCOME TO THAT EXTENT AND THE ASSESSEE HAS COMMITTED DEFAU LT FOR WHICH THE PENALTY IS LEVIABLE U/S.271(1)(C) OF THE I.T.ACT. 2.1. THE LD.CIT(A) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 3. BEFORE ME, THE LD.COUNSEL FOR THE ASSESSEE ARGUE D THAT A MERE MAKING OF WRONG CLAIM WHICH IS NOT SUBSTANTIATED IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REG ARDING THE INCOME OF THE ASSESSEE. THE LD.COUNSEL FOR THE ASSESSEE RELI ED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELI ANCE PETROPRODUCTS (P) LTD. (2010) 322 ITR 158 (SC). 4. ON THE OTHER HAND, THE LD.DR RELIED UPON THE ORD ERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE FACTS AND CIRCUMSTANCES OF THE CASE. THERE IS NO DISPUTE THA T THE FACT THAT THE ASSESSEE HAD MADE A WRONG CLAIM IN THE RETURN OF IN COME WITH REGARD TO THE UNABSORBED DEPRECIATION U/S.72 OF THE ACT. THE ASSESSEE SUBMITTED BEFORE THE AUTHORITIES BELOW THAT THE MISTAKE WAS A GENUINE MISTAKE ON ACCOUNT OF NEW PROCEDURE OF E-FILING AND THE SAME MAY BE CORRECTED. ON PERUSAL OF THE DECISION OF THE HONBLE SUPREME COUR T IN THE CASE OF RELIANCE PETROPRODUCTS (P) LTD. (SUPRA), WHERE IT H AS BEEN HELD THAT A MERE MAKING OF CLAIM WHICH IS NOT SUBSTANTIATED IN LAW, BY ITSELF, WILL NOT ITA NO.677/AHD/ 2012 MARUTI TRACTORS PVT.LTD. VS.ITO ASST.YEAR 2007-08 - 4 - AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDI NG THE INCOME OF THE ASSESSEE. IN THE PRESENT CASE, THOUGH THE ASSESSEE HAS MADE A WRONG CLAIM BUT THE BROUGHT FORWARD LOSS WHICH IS NOT ALL OWABLE CANNOT BE ALLOWED AND THE ASSESSEE HAS SUBMITTED BEFORE THE A O AS WELL AS LD.CIT(A) REGARDING THE MISTAKE WITH WHICH THE BONA FIDE OF THE ASSESSEE ARE PROVED. ACCORDINGLY, IN VIEW OF THE DECISION O F HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT.LTD .(SUPRA), NO PENALTY CAN BE LEVIED AND, ACCORDINGLY, WE REVERSE THE ORDE R OF THE LD.CIT(A) AND DIRECT THE AO TO CANCEL THE PENALTY. THUS, GROUND RAISED BY THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE SD/- ( .. ) ( B.P. JAIN ) ACCOUNTANT MEMBER AHMEDABAD; DATED 19/ 09 /2013 60.., $.../ T.C. NAIR, SR. PS 3 , )/7 87%/ 3 , )/7 87%/ 3 , )/7 87%/ 3 , )/7 87%// COPY OF THE ORDER FORWARDED TO : 1. &( / THE APPELLANT 2. )*&( / THE RESPONDENT. 3. !! / -9 / CONCERNED CIT 4. -9() / THE CIT(A)-VIII, AHMEDABAD 5. 7$:; )/ , , / DR, ITAT, AHMEDABAD 6. ;<# =. / GUARD FILE. 3- 3- 3- 3- / BY ORDER, *7/ )/ //TRUE COPY// > >> >/ // / ! ! ! ! ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD