The DCIT, Circle-9, Ahmedabad V. M/s. AKP Infrastructure, Ahmedabad

ITA 700/AHD/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5964 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-04-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 04-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Keywords: Depreciation; Capital expenditure
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: SRI D.K TYAGI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTAN T MEMBER DCIT, CIRCLE-9, AHMEDABAD (APPELLANT) VS M/S. AKP INFRASTRUCTURE, 303, SARTHAK-II, SWASTIK CHAR RASTA, NAVRANGPURA, AHMEDABAD PAN: AAEFA7501Q (RESPONDENT) REVENUE BY: SRI O.P. BATHEJA, SR.D.R. ASSESSEE BY: NONE DATE OF HEARING : 28-04-2014 DATE OF PRONOUNCEMENT : 29-04-20 14 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THIS IS THE REVENUES APPEAL AGAINST THE ORDER OF LD. CIT(A)-XV AHMEDABAD DATED 11-01-2010 DELETING THE PENALTY OF RS. 4,54,114/- LEVIED BY AO U/S. 271(1)(C) OF THE ACT. ITA NO. 700/AHD/2011 ASSESSMENT YEAR 2006-07 I.T.A NO. 700/AHD/2011 A.Y. 2006-07 PAGE NO DCIT VS. M/S AKP INFRASTRUCTURE 2 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE THE FACT THAT NOTICE FOR TODAYS HEARING WAS SENT TO HIM. SO, WE PROCEEDED TO DECIDE THE APPEAL AFTER HEARING LD. DR. 3. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 75,99,060/-. THE CAS E WAS SELECTED FOR SCRUTINY AND ASSESSMENT WAS FINALIZED U/S. 143(3) O F THE ACT DETERMINING THE TOTAL INCOME OF RS. 89,48,010/-, AFTER MAKING F OLLOWING DISALLOWANCES:- I) DISALLOWANCE U/S. 40(A)(IA) OF THE I.T. ACT RS. 10,10,488/- II) DISALLOWANCE OF DEPRECIATION ON FURNITURE & DUMPER RS. 1,41,524/- III) DISALLOWANCE OF INSURANCE AND RTO EXPENSES BEING CAPITAL EXPENDITURE RS. 1,97,108/ - SUBSEQUENTLY AO INITIATED PENALTY PROCEEDINGS AND A FTER TAKING EXPLANATION OF THE ASSSESSEE IMPOSED PENALTY OF RS. 4,54,114/-. 4. WHEN THE MATTER WENT IN APPEAL BEFORE LD. CIT(A) , SHE DELETED THIS PENALTY BY HOLDING THAT NON-DEDUCTION OF TDS WAS A TECHNICAL BREACH NOT WARRANTING IMPOSITION OF PENALTY EITHER FOR CONCEAL MENT OR FOR INACCURATE PARTICULARS OF PENALTY. SIMILARLY, PENALTY IMPOSED ON EXCESS CLAIM OF DEPRECIATION AND DISALLOWANCE OUT OF CERTAIN EXPENS ES PENALTY WAS NOT JUSTIFIED BECAUSE A MERE DISALLOWANCE OF AN EXCESS CLAIM OF DEPRECIATION OR DISALLOWANCE OUT OF EXPENSES CLAIMED PER SE DO N OT MAKE AN ASSESSEE LIABLE FOR CONCEALMENT PENALTY. LAW IS SETTLED THA T MERE DISALLOWANCE WILL NOT ATTRACT PENALTY AUTOMATICALLY U/S. 271(1)(C) OF THE ACT. FOR LEVY OF I.T.A NO. 700/AHD/2011 A.Y. 2006-07 PAGE NO DCIT VS. M/S AKP INFRASTRUCTURE 3 PENALTY CONSCIOUS CONCEALMENT BY THE ASSESSEE IS NE CESSARY. IN THE ABSENCE OF ANY MATERIAL ON RECORD IN THIS CASE, FOR SUCH CONCEALMENT, WE ARE INCLINED TO HOLD THAT LD. CIT(A) HAS RIGHTLY DE LETED THIS PENALTY AND THE ORDER PASSED BY HER IS HEREBY UPHELD. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (ANIL CHATURVEDI) ( D.K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 29/04/2014 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,