Dyanamic Sign Trek, Anand V. The Income tax Officer,Ward-1, Anand

ITA 924/AHD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5464 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 29-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Keywords: Depreciation
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD SMC BENCH (BEFORE SHRI G.D. AGARWAL, VICE-PRESIDENT) ITA.NO.924/AHD/2010 ASSTT.YEAR : 2006-2007 DYNAMIC SING TREK KASHI ESTATE B-6-7-8, BASEMENT GAMDIVAD, ANAND. PAN NO.AAFFD 3309 L VS. ITO, WARD-(1) ANAND. (APPELLANT) (RESPONDENT) ASSESSEE BY : MS.ARTI N. SHAH REVENUE BY : SHRI R.K.DHANESTA O R D E R THIS IS ASSESSEES APPEAL AGAINST ORDER OF THE CIT (A)-IV, BARODA DATED 01.01.2010. THE ONLY GROUND RAISED IN THIS APPEAL BY THE ASSESSEE IS AGAINST THE PENALTY OF RS.1,52,054/- UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. 2. AT THE TIME OF HEARING BEFORE US, IT IS SUBMITTE D BY THE LEARNED COUNSEL THAT DURING THE ACCOUNTING YEAR RELEVANT TO THE ASS ESSMENT YEAR UNDER CONSIDERATION, THE ASSESSEE HAS PURCHASED A COMPUTE RISED DIGITAL PRINTING MACHINE. IN THE BILL, THE SELLER HAS MENTIONED THE PARTICULARS OF THE MACHINE AS UNDER: 1. COMPUTER PERIPHERALS DIGITAL SOLVENT 1 NOS. R S.17,68,000/- PRINTING MACHINE WITH STAND DGI-SPACEJET 3250-P SINCE IN THE NAME OF THE MACHINE COMPUTER WAS USE D, THE ACCOUNTANT OF THE ASSESSEE BY MISTAKE TREATED THE MACHINE AS COMPUTER AND CLAIMED THE PERMISSIBLE DEPRECIATION ON THE COMPUTER, AS AGAINS T THE GENERAL RATE OF DEPRECIATION ON PLANT AND MACHINERY. HOWEVER, THER E WAS NO CONCEALMENT OF ITA.NO.924/AHD/2010 -2- ANY FACT BY THE ASSESSEE. SHE HAS STATED THAT MERE LY BECAUSE THE DEPRECIATION WAS CLAIMED AT A HIGHER RATE UNDER BONA FIDE MISTAKE OF THE ACCOUNTANT WOULD NOT AMOUNT TO CONCEALMENT OF INCOME. IN SUPPORT OF THIS CONTENTION, SHE RELIED UPON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT. LTD., 322 ITR 158. THE LEARNED DR RELIED UPON THE ORDER OF THE AUTHORITIES BELOW. 3. I HAVE CONSIDERED THE ARGUMENTS OF BOTH THE SIDE S AND FACTS OF THE CASE. IN MY OPINION, THE ISSUE IS SQUARELY COVERED IN FAV OUR OF THE ASSESSEE BY THE ABOVE DECISION OF THE HONBLE APEX COURT IN THE CAS E OF RELIANCE PETRO PRODUCTS (SUPRA) WHEREIN THEIR LORDSHIPS HELD AS UN DER: A GLANCE AT THE PROVISIONS OF SECTION271(1)(C) OF T HE INCOME-TAX ACT, 1961, SUGGESTS THAT IN ORDER TO BE COVERED BY IT, T HERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SEC ONDLY, THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICULARS OF HIS INCOME. TH E MEANING OF THE WORD PARTICULARS USED IN SECTION 271(1)(C) WOULD EMBRA CE THE DETAILS OF THE CLAIM MADE. WHERE NO INFORMATION GIVEN IN THE RETURN IS FOUND TO BE INCORRECT OR INACCURATE, THE ASSESSEE CANNOT BE HELD GUILTY OF F URNISHING INACCURATE PARTICULARS. IN ORDER TO EXPOSE THE ASSESSEE TO PE NALTY, UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISION, THE PENALTY PROV ISION CANNOT BE INVOKED. BY NO STRETCH OF IMAGINATION CAN MAKING AN INCORRECT C LAIM TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHING WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE, BECAUSE THAT IS THE ONLY DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PARTICU LARS OF HIS INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACCURATE, THE LI ABILITY WOULD ARISE. TO ATTRACT PENALTY, THE DETAILS SUPPLIED IN THE RETURN MUST NOT BE ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDING TO THE TRUTH OR ERR ONEOUS. WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIE D BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FA LSE THERE IS NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C). A ME RE MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOU NT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTI CULARS. IN THE CASE OF THE ASSESSEE, THERE WAS NEITHER ANY CONCEALMENT OF INCOME NOR FURNISHING OF ANY INACCURATE PARTICULARS. MERELY B ECAUSE THE DEPRECIATION WAS CLAIMED AT A RATE HIGHER THAN WHAT IS ACTUALLY PERM ISSIBLE ON SUCH MACHINERY, ITA.NO.924/AHD/2010 -3- WOULD NOT AMOUNT TO CONCEALMENT OF INCOME. IN VIEW OF THE ABOVE, I RESPECTFULLY, FOLLOWING THE ABOVE DECISION OF THE H ONBLE APEX COURT, CANCEL THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE A CT. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 30 TH JULY, 2010. SD/- (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 30-07-2010 VK* COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR, ITAT, AHMEDABAD