M/s Paradise Stone Exporting Company Pvt. Ltd., Mangalore V. ACIT, Mangalore

ITA 791/BANG/2011

• Counselvise Citation: 79121114 RSA 2011
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 06-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A SUNDAR RAJAN
• Keywords: Depreciation; Revised return; Unabsorbed depreciation
• Section: 92C; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH C BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER I.T.A. NO. 791 /BANG/20 11 (ASSESSMENT YEAR : 2007-08) M/S. PARADISE STONE EXPORTING CO. PVT. LTD., PLOT NO.120P & 121, BALKAMPADY INDL. AREA, MANGALORE. PAN AABCP 0693G VS. ASST. COMMISSIONER OF INCOME TAX, CIRCLE 1(1), MANGALORE. APPELLANT RESPONDENT. APPELLANT BY : SHRI RAGHAVENDRA CHAKRAVARTHY. RESPONDENT BY : SHRI A. SUNDAR RAJAN. DATE OF HEARING : 10.10.2012. DATE OF PRONOUNCEMENT : 19.10.2012 O R D E R PER SHRI JASON P. BOAZ, A.M . : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), MANGALORE DT.11.7.2011 CONFIRMING PE NALTY LEVIED UNDER SECTION 271(1)( C ) OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS ' THE ACT') FOR ASSESSMENT YEAR 2007-08. 2. THE FACTS OF THE CASE, IN BRIEF, ARE AS UNDER : 2.1 THE ASSESSEE, A COMPANY IN THE BUSINESS OF PROC ESSING AND EXPORT OF GRANITE, FILED ITS FILED ITS RETURN FOR ASSESSMENT YEAR 2007-08 ON 3 1.10.2007 DECLARING NIL TAXABLE INCOME. SUBSEQUENTLY, THE ASSESSEE FILED A REVISED RETURN O F INCOME ON 22.11.2007 DECLARING A LOSS OF RS.24,65,647. THE CASE WAS TAKEN UP FOR SCRUTINY A ND THE ASSESSMENT WAS COMPLETED BY AN 2 ITA NO.791/BANG/11 ORDER UNDER SECTION 143(3) OF THE ACT ON 30.12.2009 IN WHICH THE TOTAL INCOME WAS DETERMINED AT RS.46,58,434. AGAINST THIS INCOME, THE ASSESSEE WAS ALLOWED SET OFF OF BROUGHT FORWARD LOSSES OF ASSESSMENT YEARS 2003-04 AND 2006-07 AMOU NTING TO RS.25,69,351 AND SET OFF OF UNABSORBED DEPRECIATION OF RS.20,89,083 THEREBY RED UCING THE TAXABLE INCOME NIL. IN COMPLETING THE ASSESSMENT, THE ASSESSING OFFICER MA DE THE FOLLOWING DISALLOWANCES / ADDITIONS : I) DISALLOWANCE OF DELAYED PAYMENTS OF EMPLOYEES CO NTRIBUTION TO PF/ESI RS.2,44,244 II) ADJUSTMENT OF ALP UNDER SECTION 92C RS.68,79,8 37 2.2 AGGRIEVED BY THE ORDER OF ASSESSMENT DT.30.12.2 009 FOR ASSESSMENT YEAR 2007-08, THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(APPEALS) WHO DISMISSED THE ASSESSEE'S APPEAL ON THE GROUND THAT THERE WAS A DELAY OF 170 DAYS IN FILING THE APPEAL. THE APPEAL WAS NOT ADJUDICATED ON MERITS. IN FURTHER APPEAL BY THE ASSESSEE, A CO-OR DINATE BENCH OF THIS TRIBUNAL VIDE ORDER IN ITA NO.822/BANG/11 DT.5.10.2012 CONDONED THE DELAY OF 170 DAYS IN FILING OF THE APPEAL BY THE ASSESSEE BEFORE THE CIT(APPEALS) AND SET ASIDE THE CIT(APPEALS)S ORDER BACK TO HIS FILE FOR DE NOVO CONSIDERATION OF THE ISSUES AGITATED IN THE AP PEAL ON MERITS AND DISPOSAL THEREAFTER. 3.1 IN THE MEANWHILE, THE ASSESSING OFFICER BY ORDE R UNDER SECTION 271(1)( C ) OF THE ACT DT.30.6.2010 LEVIED PENALTY OF RS.23,97,967 THERE U NDER ON THE ASSESSEE. THE ASSESSEE WENT IN APPEAL AGAINST THIS ORDER LEVYING PENALTY UNDER SEC TION 271(1)( C ) OF THE ACT BEFORE THE CIT(APPEALS), MANGALORE WHO DISMISSED THE ASSESSEE' S APPEAL IN HIS ORDER DT.20.6.2011 THEREBY CONFIRMING THE LEVY OF PENALTY OF RS.23,97,962 UND ER SECTION 271(1)( C ) OF THE ACT. 3 ITA NO.791/BANG/11 3.2 THE ASSESSEE IS NOW IN APPEAL BEFORE US IN RESP ECT OF THE LEVY OF PENALTY OF RS.23,97,962 UNDER SECTION 271(1)( C ) OF THE ACT. AT THE OUTSE T IT WAS BROUGHT TO OUR NOTICE BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE'S APPEAL AGAINST THE ORDER OF THE LEARNED CIT(APPEALS) ON THE QUANTUM ADDITIONS MADE IN THE R EGULAR ASSESSMENT ORDER PASSED UNDER SECTION 143(3) ON 30.12.2009 HAS BEEN SET ASIDE TO THE FILE OF THE LEARNED CIT(APPEALS) BY THE ORDER IN ITA NO.822/BANG/2011 DT.5.10.2012. THE TR IBUNAL IN ITS ORDER HAD CONDONED THE DELAY OF 170 DAYS IN FILING THE APPEAL BEFORE THE CIT(APP EALS) AND HAD REMITTED THE APPEAL TO THE FILE OF THE CIT(APPEALS) FOR DE NOVO ADJUDICATION ON THE MERITS OF THE CASE. IN THIS VIEW OF THE MATTER, IT WAS PRAYED BY THE LEARNED COUNSEL FOR TH E ASSESSEE THAT THE ORDER LEVYING PENALTY UNDER SECTION 271(1)( C ) OF THE ACT ALSO SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION AND ORDERS PURSUANT TO THE DISPOSAL O F THE QUANTUM APPEAL BY THE LEARNED CIT(APPEALS). 3.3 THE LEARNED DEPARTMENTAL REPRESENTATIVE WAS ALS O HEARD AND HAD NO OBJECTION FOR THE ORDER LEVYING PENALTY UNDER SECTION 271(1)( C ) OF THE ACT BEING REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION AND ORDE RS PURSUANT TO THE DISPOSAL OF THE QUANTUM APPEAL BY THE CIT(APPEALS). 3.4 WE HAVE HEARD BOTH PARTIES AND CAREFULLY PERUS ED THE MATERIAL ON RECORD. IN THE LIGHT OF THE ORDERS OF THE CO-ORDINATE BENCH OF THIS TRIB UNAL IN ITA NO.822/BANG/2011 DT.5.10.2012 REMITTING THE QUANTUM APPEAL OF THE ASSESSEE FOR DE NOVO CONSIDERATION AND DISPOSAL ON MERITS, WE, IN THE INTEREST OF EQUITY AND JUSTICE SET ASIDE THE ORDER LEVYING PENALTY OF RS.23,57,967 4 ITA NO.791/BANG/11 UNDER SECTION 271(1)( C ) OF THE ACT TO THE FILE O F THE ASSESSING OFFICER WITH DIRECTION TO CONSIDER THE MATTER AFRESH AND PASS ORDERS THEREON PURSUANT TO THE DISPOSAL OF THE QUANTUM APPEAL BY THE CIT(APPEALS). IT IS ORDERED ACCORDIN GLY. 4. IN THE RESULT, THE ASSESSEE'S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 9.10.2012. SD/- SD/- (P. MADHAVI DEVI) (JASON P BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER *REDDY GP COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, - C BENCH. 6. GUARD FILE. (TRUE COPY ) BY ORDE R SR. PRIVATE SECRETARY, ITAT, BANGALORE