TMI Blog2014 (6) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... n to interfere in the order of CIT(A) in respect of deletion of penalty in respect of any of these three additions/disallowances - on the date of filing of return of income for AY 2005-06, there was no disallowance or addition in AY 2004-05 and the same has happened on 24.12.2006 due to which the brought forward depreciation was reduced – the claim of assessee for brought forward unabsorbed depreciation from the AY 2004- 05, penalty is not justified – thus, there was no infirmity in the order of CIT(A) – Decided against Revenue. - I.T(SS).A. Nos.587, 588& 589/ Ahd/2011 & I.T.A.No. 1780/Ahd/2012, C.O.Nos.272, 273 & 274/Ahd/2011 - - - Dated:- 31-1-2013 - Shri A. K. Garodia And Shri Kul Bharat,JJ. For the Appellant : Shri Shellley Jindal, CIT DR For the Respondent : Shri S. N. Soparkar, AR ORDER Per Shri A. K. Garodia, AM:- Out of this group of four appeals and three cross objections, we find that there are three appeals filed by the revenue for the assessment years 2003-04, 2004-05 2006-07 and three cross objections are filed by the assessee for these three assessment years and all these are directed against a combined order of Ld. CIT(A) I, Ahme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue receipt but this issue is now fully covered in favour of the assessee by these judgements cited by the Ld. A.R. which were followed by Ld. CIT(A). The basis of this decision is this that when the purchases are accounted for and debited to P L account net of such excise duty paid on purchases, MODVAT/CENVAT credit received by the assessee already stand included in the profits of the assessee by way of reduction in purchase price debited to P L account and, therefore, it cannot be added again. Respectfully following these judgements, we decline to interfere in the order of Ld. CIT(A) on this issue in all these three years. 2.4 In the result, revenue s appeals in all the three years in I.T.(SS)A. Nos. 587, 588 589/Ahd/2011 are dismissed. 3. Now, we take up the three cross objections filed by the assessee for these three assessment years in cross objections Nos. 272. 273 274/Ahd/2011. The grounds raised by the assessee in these cross objection are identical and hence, we reproduce the grounds from C.O. filed by the assessee for the assessment year 2003-04 i.e. C.O. No.272/Ahd/2011, which are as under: 1. Ld. CIT (A) has erred in law in confirming the action of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of addition of Rs.9,38,007/- on account of disallowance of excess claim of depreciation without appreciating the fact that the case on which the Id. CIT(A) has placed reliance are altogether different from the facts of the present case. The Ld. CIT(A) has erred in law and on facts in deleting the penalty levied in respect of addition of Rs. 2,23,09,295/- on account of disallowance of deduction u/s. 10B in respect of cotton yarn division, without appreciating the fact that the deduction/exemption under this section is available for a period of 10 consecutive assessment years beginning with the assessment year relevant to previous year in which the undertaking begins the manufacture/produce and not the period of 10 years from the date of commencement of manufacturing production. In the case of the assessee, 10 consecutive assessment years for the benefit u/s. 10B of the Act for the cotton yarn unity were over in the A.Y. 2004-05. The Ld. CIT(A) has erred in law and on facts in deleting the penalty levied in respect of addition of Rs. 11,60,050/- on account of disallowance of deduction u/s. 10B in respect of Kadi Unit, excluded the amount of Rs.11,06,050/- (Commission on frei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich ends on 31.3.2005. No claim of deduction has been made by the appellant in the first six assessment years. Further the deduction was again claimed on the basis of the Auditors certificate in Form 56G, that means the auditors did not make proper calculation and where the mistake is attributable to the auditors the appellant cannot be penalized, therefore in my view no penalty is leviable on the wrong claim u/s. 10B. In this regard case law relied upon by the appellant of Hon'ble ITAT Mumbai 'B' bench decision in the case of Niton Valve Industries (P) Ltd, vs. ACIT (2009) 30 SOT 236 (Mum) is found supporting the case of the appellant wherein it was held that no penalty was leviable u/s. 271(1)(c) where mistake in calculation of years for calculating deduction u/s. 80IA was found for not allowing the deduction. 3. With respect to excess claim u/s. 10B of Rs.11,60,050 it is seen that the appellant claimed deduction on commission on freight of Rs.50,062, misc income of Rs.3,15,256, and exchange fluctuation of Rs.7,94,732 related to Kadi unit - which income was not found eligible for the deduction. After going through rival submissions no penalty can be levied on this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as High court is not applicable to the facts of the present case, we do not find any reason to interfere in the order of Ld. CIT(A) in respect of deletion of penalty in respect of any of these three additions/disallowances. 4.4 Penalty in respect of the 4th disallowance regarding the carry forward depreciation has been deleted by Ld. CIT(A) on this basis that the assessment order for the assessment year 2004-05 was passed on 29.12.2006 whereas the return of income for the assessment year 2005-06 was filed on 30.09.2005. The basis of deleting this penalty is this that on the date of filing of return of income for assessment year 2005-06, there was no disallowance or addition in assessment year 2004-05 and the same has happened on 24.12.2006 due to which the brought forward depreciation was reduced and, therefore, for this claim of assessee for brought forward unabsorbed depreciation from the assessment year 2004- 05, penalty is not justified. We find no infirmity in the order of Ld. CIT(A) on this issue also and hence, we decline to interfere in his order. 4.5 In the result, this appeal of the revenue is also dismissed. 5. In the combined result, all the four appeals of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
