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OJCA/125/2000 3/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 125 of 2000
WITH
TAX
APPEAL No. 2209 of 2010
======================================
ASST.
CIT - Applicant
Versus
AMOD
PETROCHEM (P) LTD. - Respondent
======================================
Appearance
:
MR
MANISH R BHATT, SENIOR COUNSEL WITH MRS. MAUNA M BHATT for
Applicant.
None for
Respondent.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 12/10/2010
COMMON ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
The
Revenue has filed this Civil Application for condonation of delay of
3 days in preferring Tax Appeal against the order of the Tribunal
dated 07.10.1999 for A.Y. No.1987 88 deleting the penalty levied
under Section 271 (1) (c) of the Income Tax Act, 1961.
In
the Tax Appeal, the Revenue has proposed to formulate the following
substantial questions of law for the determination and consideration
of this Court :-
Whether
the Appellate Tribunal was justified in law and on facts in coming to
the conclusion that no penalty under Section 271 (1) (c) of the Act
could be imposed in respect of wrong claim of investment allowance
amounting to Rs.4,17,943/- and bogus claim of depreciation for an
amount of Rs.5,51,233/- even though the facts of the case clearly
suggested that assessee had filed inaccurate particulars of income so
far as both these items are concerned ?
Heard
Mr. M. R. Bhatt, learned Senior Standing Counsel appearing with Mrs.
Mauna M. Bhatt, learned Standing Counsel for the Revenue.
So
far as the Civil Application is concerned, delay is of only 3 days
and normally, we should have condoned the delay after issuance of
notice of rule to the respondent. However, looking to the issue
involved in the Tax Appeal, we deem it fit not to issue any notice
in this Civil Application and dispose of the Civil Application as
well as Tax Appeal by this common order.
So
far as Tax Appeal is concerned, the case of the Revenue is that the
Tribunal has wrongly arrived at the conclusion that no penalty under
Section 271 (1) (c) of the Act could be imposed in respect of wrong
claim of investment allowance amounting to Rs.4,17,943/- and bogus
claim of appreciation for an amount of Rs.5,51,233/- even though the
facts of the case clearly suggested that the assessee had filed
inaccurate particulars of income so far as both these items are
concerned. It is also the case of the Revenue that against the
deletion of the addition, appeal has been preferred by the Revenue
before this Court. The machineries on which investment allowance
and depreciation originally claimed were withdrawn by the assessee
by filing revised return only after enquiries were made by the
department. The Revenue is, therefore, of the view that since the
revised return was filed only after the enquiry was made by the
Assessing Officer, it was liable to penalty under Section 271 (1)
(c) of the Act. The Tribunal has considered this aspect at great
length and it was observed by the Tribunal that the assessee
committed a bonafide mistake by filing original returns. Its
subsequent conduct in admitting the true state of affairs should
also be considered as bonafide and no adverse inference should be
drawn against the assessee for levy of penalty. In addition to
this, the Tribunal has further taken the note of the fact that the
penalty order did not clearly establish or bring out that the
assessee deliberately concealed the particulars of income or
furnished inaccurate particulars of income. Both the Appellate
Authorities have come to the conclusion that there was no question
of furnishing inaccurate particulars at any time. Considering the
facts and circumstances of the case and there being concurrent
findings given by both the Appellate Authorities on facts, we do not
see that any substantial question of law arises out of the order of
the Tribunal. Since the appeal itself does not warrant admission,
there is no question of condoning the delay and hence, this Civil
Application as well as Tax Appeal are accordingly dismissed.
Office
is directed to give Pakka number to the Tax Appeal and thereafter it
must be shown as disposed of in the record.
Sd/-
[K.
A. PUJ, J.]
Sd/-
[HARSHA
DEVANI, J.]
Savariya
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