TMI Blog2023 (7) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... the original assessment proceedings and the AO has already considered the claim of the assessee based on the submission placed before him. We also take note of the fact that in the reasons recorded in this case is that assessee has paid interest payment of TCS and claim on higher rate of depreciation is already decided based on the submission made by the assessee. Therefore, reopening is done merely based on the same material already on record. Decided in favour of assessee. - ITA No. 141/JPR/2023, CO No. 03/JPR/2023 (Arising out of ITA No. 141/JPR/2023) - - - Dated:- 28-6-2023 - Dr. S. Seethalakshmi, JM And Shri Rathod Kamlesh Jayantbhai, AM For the Assessee : Shri G.M. Mehta (C.A.) For the Revenue : Shri James Kurian (CIT) ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by the Revenue and the Cross Objection filed by the assessee, which is arising out of the order of the Learned Commissioner of Income Tax (Appeals) (NFAC), Delhi[herein after referred to as NFAC/ld.CIT(A) ] dated 09.02.2023 for the assessment year 2013- 14, which in turn arise from the order passed by the DCIT, Circle-3, Jaipur u/s 143(3) r.w.s. 147 of the Income Tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R/o Rs. 1,48,41,710/- 6. Feeling dissatisfied the assessee has carried the matter before the ld. CIT(A). A propose to the grounds so raised the finding of the ld. CIT(A)is reiterated here in below:- 6. Decision: in this case, an addition has been made by the Assessing Officer on two grounds (1) Deposition of TCS worth Rs. 3,81,033/- and (2) depreciation worth Rs. 56,680/-. 6.1 The Assessing Officerhas made on addition of Rs. 3,81,033/- on ground of late deposition of T.C.S. and treated it as not allowable expenditure. The appellant had filed written submission before me. The appellant has relied upon various judgment that late deposition of T.D.S., T.C.S., Service Tax is not penal in nature. I agree to the submission of the appellant. Hence, this ground is allowed. 6.2 Second addition is on account of excess depreciation claimed by the appellant worth Rs. 56,680/-. The Assessing Officer has claimed that the appellant is not engaged in hiring/buying the vehicles. In the written submission, the appellant had claimed that this new pick-up vehicle was purchased as there was one pick-up vehicle was purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee had not put any effort to prove this fact. Moreover, interest payment on late deposition of TCS is not allowable as expenditure, being penal in nature. The assessee cannot justify the infringement of law by taking any excuse. If it would be accepted than the provision of law will not be followed in true spirit. Such expenditure does not pertain to the business or profession of the assessee firm but is personal and penal in nature. The tax effect involved in the case is Rs.1,17,740/- which is below the limit prescribed by the Board's Circular no. 17/2019 dated 08.08.2019 for filing appeal before the Hon'ble ITAT, but, this case falls in the exception mentioned in Para 10(c) of Board's Circular No. 03/2018 dated 11-07- 2018. Considering the facts, mentioned above, further appeal before Hon'ble ITAT is authorized. 9. Per Contra, the ld. Authorized Representative appearing on behalf of the assessee, apropos to the appeal of the revenue and cross objection of the assessee, he has relied upon the following written submission:- After examining the books of account and considering the details in response to the queries raised. Id. AO had allowed following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act - (2023) 452 ITR 224 (SC). (ii) The deletion of addition of Rs.3,81,033/- for interest for late payment of TCS was as per the law laid down in different judicial pronouncements and therefore cannot be treated as unlawful act of Id. CIT(A), NEAC: The issue has already been discussed and addition of Rs.3,81,033/- was deleted by CIT(A), who found it to be compensatory in the light of different judicial pronouncement (page 8 of order), and therefore CIT(A) acted perfectly in accordance with law. The department is not, therefore, justified in challenging the deletion. (iii) Ld.CIT(A) NFAC has erred in sustaining addition of Rs.56,680/- on account of depreciation of Vehicles, the deduction of which was allowed by the then ld. AO after making relevant query and on application of mind, meaning thereby it was a change of opinion, not permissible under Income tax reassessment proceedings. By order under sec. 143(3) of LT. Act for immediately preceding year (A.Y. 2012-13) Id. AO has allowed depreciation on vehicle (pick up -HR 47A 9708) 30% (P.B. page 5 to 12). Considering the facts and order u/s. 143(3) for A.Y. 2012-13, Id. AO allowed depreciation@ 30 per cent on w.d.v. of sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rming part of the records. The issue raised by the Revenue is nothing but a change of opinion and the law does not permit the change of opinion on the same issue which has been examined by the ld. AO while passing the assessment order. In this case the assessment is completed on 20.03.2016, the assessee vide their submission dated 15.03.2016 has already given a detailed submission and the same is reproduced for the sake of convenience:- Genuineness of the expenses debited to trading and profit loss account: You will please find from the trading and profit and loss account to the assessee AOP that major expenses and payments like permit fee, license fees, application fee stock transfer fee etc. are either to Government Department (Excise Department) or to banks or other statutory deductions like depreciation etc which are cross verifiable. The details of these expenses/payments/deductions are as under: S No. Head of expenses Amount Total Expenses debited to trading account 1,76,67,918 1. Permit fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. Therefore, reopening is done merely based on the same material already on record. We find from the order of the ld. CIT(A) that the assessee has challenged the reopening of the case before the ld. CIT(A) in ground No. 1. But the ld. CIT(A) has not decided this ground for the reasons best known to him even through there is a submission of the assessee challenging the proceeding initiated u/s 147 of the Act. The Bench noted that the ld. AR of the assessee has relied upon the decision in case of Joint Commissioner of Income Tax and Another v. Cognizant Technology solutions India Pvt. Ltd. (supra). Similar view is taken by the apex court on re-opening of the case in the case of ACIT Vs. CEAT Ltd. 449 ITR 171(SC) wherein the apex court has held that It is not in dispute that the assessment was sought to be reopened beyond four years. Therefore, all the conditions u/s. 148 of the income tax act for reopening the assessment beyond four years are required to be satisfied. Having gone through the reasons recorded for reopening, we are of the opinion that the conditions precedent for reopening of the assessment beyond four years or not satisfied. The assessment was on change of opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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