ACIT, CHENNAI V. M/s. TVS Finance & Services Limited (formerly TVS Lakshmi Credit Limited), CHENNAI

ITA 890/CHNY/2008

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 8340 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 23-07-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 24-04-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: OMKARESHWAR CHIDRA
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Depreciation; Difference of opinion
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH D CHENNAI (BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER) ..... I.T.A. NO. 890 / MDS/2008 ASSESSMENT YEAR : 1998-99 THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE III(2), CHENNAI - 600 034. (APPELLANT) V. M/S TVS FINANCE & SERVICES LTD., (FORMERLY TVS LAKSHMI CREDIT LTD.), 29, OLD NO.8, HADDOWS ROAD, CHENNAI - 600 006. PAN : AAACT1154H (RESPONDENT) APPELLANT BY : SHRI OMKARESHWAR CHIDRA RESPONDENT BY : SHRI R. VIJAYARAGHAVAN O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : ON DIFFERENCE OF OPINION BETWEEN MEMBERS CONSTITUT ING THE BENCH, THE FOLLOWING QUESTION WAS FORMULATED AND RE FERRED TO THIRD MEMBER, BEING THE HON'BLE PRESIDENT HERE, UNDER SECT ION 255(4) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT): WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE PENALTY IS EXIGIBLE UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961. 2. CONSEQUENT TO THIS, VIDE HIS ORDER DATED 24 TH AUGUST, 2009, THE HON'BLE PRESIDENT SITTING AS THE THIRD MEMBER HELD A S FOLLOWS:- I.T.A. NO. 890/MDS/08 2 29. FOR THE AFORESAID REASONS, I AGREE WITH THE ORDER PROPOSED BY THE LEARNED ACCOUNTANT MEMBER. I DEEM, IT IS UNNECESSARY TO REPEAT ALL THE REASONS G IVEN BY THE LEARNED ACCOUNTANT MEMBER. LEVY OF THE PENALTY IS UPHELD. 3. THE APPEAL OF THE REVENUE WAS AGAINST THE ORDER OF THE CIT(APPEALS)-VIII, CHENNAI DATED 31.1.2008 WHEREBY HE DELETED THE PENALTY LEVIED ON THE ASSESSEE UNDER SECTION 271(1) (C) OF THE ACT. IT WAS HELD BY THE LD. ACCOUNTANT MEMBER THAT THE ASSE SSING OFFICER HAD RIGHTLY LEVIED PENALTY IN THE MATTER OF LEASED OUT ASSETS AND DEPRECIATION CLAIMED THEREON AND THE CIT(APPEALS) H AD ERRED IN DELETING THE PENALTY. AS AGAINST THIS LD. JUDICIAL MEMBER HAD CANCELLED THE PENALTY GIVING RISE TO THE REFERENCE. NOW THE HON'BLE PRESIDENT IN HIS CAPACITY AS THIRD MEMBER HAS AGREE D WITH THE VIEW TAKEN BY THE LD. ACCOUNTANT MEMBER. NO DOUBT, THE HON'BLE PRESIDENT HAS IN PARA 28 MENTIONED THAT CERTAIN ALT ERNATIVE SUBMISSIONS WERE MADE BY THE LEARNED COUNSEL FOR TH E ASSESSEE BEFORE HIM REGARDING LEVY OF PENALTY AT 300% OF TAX SOUGHT TO BE EVADED, BEING ON THE HIGHER SIDE. HON'BLE PRESIDEN T ALSO MENTIONED THAT THE ISSUE CAN BE EXAMINED, IF SO, PERMITTED BY LAW, BY THE REGULAR BENCH. NEVERTHELESS, IN VIEW OF THE DECISION OF HO N'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF DYNAVISION LTD. V. INCOME TAX APPELLATE TRIBUNAL AND OTHERS (2008) 304 ITR 350 WHICH ELABOR ATELY DISCUSSES THE POWERS OF THE THIRD MEMBER ON A REFERENCE UNDER SECTION 255(4), I.T.A. NO. 890/MDS/08 3 WE ARE OF THE OPINION THAT, AFTER THE EXPRESSION OF THE OPINION OF THE THIRD MEMBER ON THE QUESTION REFERRED TO HIM, OUR P OWERS ARE LIMITED TO GIVING EFFECT TO THE OPINION OF THE MAJORITY. 4. CONSEQUENTLY, IN VIEW OF THE MAJORITY OPINION, T HE APPEAL OF THE REVENUE IS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 6 TH AUGUST, 2010. SD/- SD/- (GEORGE MATHAN) (ABRAH AM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 6 TH AUGUST, 2010. KRI. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A)-VIII, CHENNAI (4) CIT-I, CHENNAI (5) D.R. (6) GUARD FILE