SHRI VIVEK SONI,JAIPUR vs. INCOME TAX OFFICER, ALWAR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 586/JP/2017 fu/kZkj.k o"kZ@Assessment Year : 2009-10 cuke Sh. Vivek Soni Income Tax officer, Vs. S/o Ramesh Chand Soni, Ward Behror, Peethawali, Ward No. 10 Behror 301 701 Kotputli, Distt. Jaipur. Distt. Alwar. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ASSPS3535Q vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : None jktLo dh vksj ls@ Revenue by : Shri P.P. Meena (J.CIT) lquokbZ dh rkjh[k@ Date of Hearing : 03/11/2017 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 10/11/2017 vkns'k@ ORDER

PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 08.06.2017 of CIT (A), Alwar arising from the penalty order passed u/s 271(1)(c) of the Act for A.Y. 2009-10. The assessee has raised the following grounds as under:- “1. The learned AO has erred in imposing the penalty of Rs. 20000/- under section 271(1)(c) on ad hoc or lump sum addition made on estimate basis and CIT (Appeal) has erred in confirming the same. 2. Any other ground of appeal at the time hearing.”

ITA No. 586/JP/2017 Vivek Soni V ITO

assessee however, Mr. Anil Goyal (C.A.) the ld. Authorized

Representative of the assessee filed a letter dated 27.10.2017 and

pleaded that this appeal of the assessee may be decided by considering

written submissions filed on behalf of the assessee on 28.08.2017. Thus

this appeal of the assessee is taken up for hearing and adjudication.

submissions of the assessee as well as the contentions of the ld. DR.

The assessee is engaged in the business of plying of trucks. The

assessee declared his income from the business of plying trucks under

the provisions of section 44AE. While framing the assessment the

Assessing Officer made disallowance of Rs. 64,675/- on account of

depreciation of car claimed by the assessee. The addition was

confirmed by the CIT(A) and thereafter the AO initiated the penalty

proceedings u/s 271(1)(c) against the addition on account of

disallowance of depreciation on car. Thus the issue of disallowance of

depreciation, in the facts of the case when the assessee has declared

the income under deeming of provisions of section 44AE, has attained

the finality. The Assessing Officer imposed levy of penalty of Rs.

20,000/- u/s 271(1)(c) vide order dated 25.03.2015 which was

ITA No. 586/JP/2017 Vivek Soni V ITO

challenged by the assessee before the ld. CIT(A) however, the ld.

CIT(A) was not impressed with the contention and explanation of the

assessee and confirmed the levy of penalty.

restriction to claim the depreciation of any asset which is being used in

the business of plying trucks u/s 44AE. Therefore, in the absence of any

specific restriction of allowing the depreciation on the asset other than

the plying trucks the claim of the assessee though, disallowance made

by the assessee and confirmed by the CIT(A) cannot be treated as

bogus leading to the default of either concealment of income or

furnishing inaccurate particulars of income. Further, it is contended that

it may be a difference of opinion on a debatable issue and merely

because the Assessing Officer made an addition on the basis of material

available on record it will not amount to furnishing inaccurate

particulars of income or concealment of income. When the assessee

explained and furnished all the relevant details and documents before

the AO during the assessment proceedings then the addition made by

the AO would not warrant levy of penalty u/s 271(1)(c). The asessee

has placed reliance on various decisions including the decision of

ITA No. 586/JP/2017 Vivek Soni V ITO

Hon’ble Supreme Court in case of CIT Vs. Reliance Petro Products Pvt.

Ltd. 322 ITR 158.

claimed depreciation on car which is not permissible as per the

provisions of the Act when the assessee declared the income from

business u/s 44AE from the business of plying trucks. He has further

contended that during the assessment proceedings the AO noted that

the assessee has claimed depreciation on car which was wrongly

credited in the capital account of the assessee in M/s Triputi Cottage

whereas the said amount was sub sumed in calculating the income u/s

44AE. He has relied upon the orders of the authorities below.

material on record, we note that as far as the income declared u/s 44AE

is concerned the Assessing Officer has accepted the same. However,

the AO disallowed the claim of the assessee on account of depreciation

on cars. Though disallowance made by the AO was confirmed by the ld.

CIT(A) and attained finality, however, when the assessee has produced

the all relevant record, details as well as facts before the Assessing

Officer and only from the record produced by the assessee the AO

noted that the assessee has claimed the depreciation of Rs. 64,675/-

ITA No. 586/JP/2017 Vivek Soni V ITO

which was also credited to the capital account of the assessee. Thus,

the disallowance made by the AO is based on the ground that the said

claim is not permissible when the assessee has declared income u/s

44AE. There is no quarrel on the point that as per sub-section 3 of

section 44AE no deduction is allowable u/s 30 to 38 as the same is

deemed to have been already given full effect while computing the

income as per provisions of section 44AE(1). However the disallowance

of the claim as per the statutory provision would not amount that the

assessee has furnished inaccurate particulars of income or concealment

of income when all the details and relevant material available before the

AO as produced by the assessee. Therefore, in view of the decision of

Hon’ble Supreme Court in case of CIT vs. Reliance Petro Products Pvt.

Ltd. (Supra) which is binding precedent we are of the view that the

penalty cannot be levied simply because of the addition made by the

AO as it was not allowable under the provisions of section 44AE. It is

not the case of the AO that the depreciation claimed by the assessee is

a bogus claim on non existing business asset or otherwise absolutely

wrong. Therefore, in the facts and circumstances of the case we delete

the penalty of Rs. 20,000/- levied u/s 271(1)(c) of the Act.

In the result, the appeal of the assessee is allowed.

ITA No. 586/JP/2017 Vivek Soni V ITO Order pronounced in the open court on 10/11/2017 Sd/- Sd/- ¼fot; iky jko½ ¼foØe flag ;kno½ (Vikram Singh Yadav) (Vijay Pal Rao) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 10/11/2017. *Santosh. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Sh. Vivek Soni S/o Ramesh Chand Soni, Peethawali, Ward No. 10 Kotputli, Distt. Jaipur. 2. izR;FkhZ@ The Respondent- Income Tax officer, Ward Behror, Behror 301 701 Distt. Alwar. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File {ITA No. 586/JP/2017} vkns'kkuqlkj@ By order,

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