ACIT, NEW DELHI vs. M/S. NEEL METAL PRODUCTS LTD., NEW DELHI

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: ‘D’, NEW DELHI

BEFORE SMT. BEENA A PILLAI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER

ITA Nos. 6567/Del/2013 AY: 2005-06 & ITA Nos. 6568/Del/2013 AY: 2007-08 Neel Metal Products Ltd. ACIT, 601, Hemkunt Chamber Nehru Place Company Circle 13(1) vs. New Delhi 110 018 New Delhi PAN: AABCN6304Q AND ITA Nos. 6377/Del/2013 AY: 2007-08 ACIT, Neel Metal Products Ltd. Company Circle 13(1) 601, Hemkunt Chamber Nehru Place vs. New Delhi New Delhi 110 018 PAN: AABCN6304Q (Appellant) (Respondent) Assessee by : None Revenue by : Smt.Naina Soin Kapil, Sr.DR

Date of Hearing : 21/01/2019 Date of Pronouncement: ORDER PER BEENA A PILLAI, JUDICIAL MEMBER

Present penalty appeal for assessment year 2005-06 has been filed by assessee and Cross appeals for assessment year 2007-08 by assessee as well as revenue have been filed against separate orders dated 30/09/13 passed by Ld.CIT (A)-16, New Delhi on following grounds of appeal:

ITA Nos. 6567 and 6568/Del/13 AY:2005-06, 2007-08 Neel Metal Products Ltd. ITA 6377/Del/13 AY 2007-08 ACIT vs. Neel Metal Products Ltd.

Assessment year 2005-06 ITA No. 6567/Del/2013(assessee’s appeal) 1. That on the facts and circumstances of the case and in law, the Ld.CIT(A)-XVI (“the CIT(A)”) has erred in upholding the order of AO by levying penalty u/s 271(1)(c). 2. That on the facts and circumstances of the case and in law, the Ld.CIT(A)-XVI (“the CIT(A)”) has erred in upholding the order of AO by levying penalty u/s 271(1)(c) on additions on account of disallowance of depreciation of Rs.1,02,719/- on electric fittings. 3. That on the facts and circumstances of the case and in law, the Ld.CIT(A)-XVI (“the CIT(A)”) has erred in upholding the order of AO by levying penalty u/s 271(1)(c) on additions on account of Technical Assistance/Know-how expenses of Rs.35,69,931. The appellant craves to add, amend, alter the ground either before or at the time of hearing of the appeal.” Assessment year 2007-08 ITA No.6568/Del/2013 (assessee’s appeal) 1. That on the facts and circumstances of the case and in law, the Ld.CIT(A)-XVI (“the CIT(A)”) has erred in upholding the order of AO by levying penalty u/s 271(1)(c). 2. That on the facts and circumstances of the case and in law, the Ld.CIT(A)-XVI (“the CIT(A)”) has erred in upholding the order of AO by levying penalty u/s 271(1)(c) on additions on account of disallowance of depreciation of Rs.4,74,334/- on electric fittings.

ITA Nos. 6567 and 6568/Del/13 AY:2005-06, 2007-08 Neel Metal Products Ltd. ITA 6377/Del/13 AY 2007-08 ACIT vs. Neel Metal Products Ltd. 3. The appellant craves to add, amend, alter the ground either before or at the time of hearing of the appeal.”

ITA No. 6377/del/2013 (revenue’s appeal) 1. On the facts and circumstances of the case, the Ld.CIT(A) has erred in deleting the penalty by Rs.17,41,618/- imposed by the assessing officer u/s 271(1)(c) of the Act on account of wrong and excess claim of depreciation on electric fitting. 1.1. On the facts and circumstances of the case, the Ld.CIT(A) has erred in not appreciating the fact that the addition was confirmed by the first appellate authority at the time of quantum appealed by the assessee company. 1.2. On the facts and circumstances of the case, the Ld.CIT(A) has erred in not appreciating the fact that the case of the assessee company squarely falls under Explanation 1 & 4 of section 271(1)(c) of the Act. 2. The appellant craves to be allowed to add any fresh grounds of appeal and/or delete or amend any of the grounds of appeal.” 2. For sake of convenience we shall take up assessment year 2005-06. 3. Brief facts of the case are as under: Assessee is engaged in the business of manufacturing of sheet metal components and assemblies and sub-assemblies, primarily for auto mobiles and white goods sector. In assessment order passed under section 143 (3) of the Act, Ld.AO made following additions:

ITA Nos. 6567 and 6568/Del/13 AY:2005-06, 2007-08 Neel Metal Products Ltd. ITA 6377/Del/13 AY 2007-08 ACIT vs. Neel Metal Products Ltd. a) disallowing depreciation on electric installation Rs.14,94,166/- b) disallowing depreciation on UPS Rs. 72,559/- c) capitalisation of know-how Rs.35,69,931/- 3.1. Aggrieved by additions made by Ld.AO assessee preferred appeal before Ld.CIT(A), which was dismissed vide order dated 31/08/10. Against order passed by Ld.CIT(A), assessee preferred appeal before this Tribunal. 4. Ld. AO issued notice under section 274 read with 271(1)(c) of the I.T.Act 1961, for furnishing inaccurate particulars. Assessee submitted various details in response to notice issued and after considering the same, Ld.AO levied penalty of Rs. 18,53,080/-. 5. Aggrieved by penalty order of Ld. AO, assessee preferred appeal before Ld. CIT (A), who partially deleted penalty. 6. Against order of Ld. CIT (A) assessee is in appeal before us now. 7. None has appeared on behalf of assessee before us today. Considering smallness of the case and that quantum addition stands covered by order of Hon’ble High Court in assessee’s own case, we are inclined to dispose of these appeals. 8. Ground No. 1 raised by assessee is general in nature and therefore do not require any adjudication. 9. Ground No. 2 has been raised by assessee against levy of penalty on addition on account of disallowance of depreciation of Rs.1,02,719/-, on electric fittings. 9.1. It is observed that Hon’ble Delhi High Court in assessee’s own case for assessment year 2007-08 and 2008-09 has held

ITA Nos. 6567 and 6568/Del/13 AY:2005-06, 2007-08 Neel Metal Products Ltd. ITA 6377/Del/13 AY 2007-08 ACIT vs. Neel Metal Products Ltd. allowability of depreciation at 15%. From penalty order passed by Ld.AO it is observed that assessee had originally claimed 25% on Electrical fitting, which was subsequently rectified to15% and assessee had himself offered excess claim of depreciation at Rs.1,02,719/- during assessment proceedings which was added back to its income. It is also observed that assessee had not appealed against the same, before Ld.CIT (A) in quantum proceedings. 9.2. Ld.AO levied penalty for furnishing of inaccurate particulars. Assessee submitted that, it was inadvertent mistake which, he rectified during the assessment proceedings. 9.3. Ld.Sr.DR supported orders of authorities below and submitted that, claiming of excess depreciation amounts to furnishing of inaccurate particulars of income, and therefore penalty deserves to be confirmed. She placed reliance upon decision of Hon’ble Delhi High Court in the case of CIT vs Zoom Communication Pvt.Ltd., reported in (2010) 191 Taxman 179. 10. We have perused submissions advanced by both sides in light of records placed before us. 10.1. It is observed that assessee submitted it to be an inadvertent mistake to claim excess depreciation of 25% by considering Electrical fittings as Electrical installations. It is observed from orders of authorities below that assessee claimed depreciation at 25% on ground that these were electrical installations which are not in the nature of Electrical fittings and capital expenditure made for DG set, Transformers, switch panels and other accessories required to run a particular machinery. It is also observed that assessee was of the view that these

ITA Nos. 6567 and 6568/Del/13 AY:2005-06, 2007-08 Neel Metal Products Ltd. ITA 6377/Del/13 AY 2007-08 ACIT vs. Neel Metal Products Ltd. installations comes within definition of plant under section 43 (3) of the Act. Further Ld.CIT (A) himself records that there has been differences of opinion with regard to applicability of rate of depreciation on items of Electrical installation. 10.2. Merely because assessee claimed depreciation at 25% treating items to be plant, which claim was not acceptable to revenue, would not by itself attract penalty under section 271 (1) (c ) of the Act. The disallowance can at best be a wrong claim but not a false claim. Hon’ble Delhi High Court in case of CIT vs. Bacardi Martini India Ltd reported in 158 Taxmann 348, held as under: “11. The crux of the ratio of above decisions is that a mere omission or negligence would not constitute a deliberate act of suppressio veri or suggestio falsi. In order to be covered within the proviso of clause (c) of sub-section (1) of section 271, there has to be concealment of particulars of income by the assessee or the assessee must have furnished inaccurate particulars of income. Incorrect claim may not amount to furnishing of inaccurate particulars. Everything depends upon the return filed by the assessee, because that is the only document where the assessee can furnish particulars of his income. When such particulars are furnished inaccurately, the liability 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 erroneous. Mere making of a claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding income of assessee and such a claim

ITA Nos. 6567 and 6568/Del/13 AY:2005-06, 2007-08 Neel Metal Products Ltd. ITA 6377/Del/13 AY 2007-08 ACIT vs. Neel Metal Products Ltd. cannot amount to furnishing inaccurate particulars. The order imposing penalty is quasi-criminal in nature and the burden lies on the Department to establish that the assessee had concealed his income or furnished inaccurate particulars.” 10.3. Respectfully following the same we are inclined to delete penalty levied by A.O. on the disallowance of depreciation. 11. Accordingly this ground raised by assessee stands allowed. 12. Ground No. 3 raised by assessee is against penalty levied on account of technical assistance/know-how expenses. 12.1. Ld.AO observed that assessee claimed foreign currency expenses of Rs.47,59,908/- under head ‘ technical assistance/know-how’. On a show cause being issued by Ld. AO, assessee submitted that payment has been made towards technical assistance and training provided by foreign AE. It was submitted by assessee that it had not acquired any information, invention from foreign companies and therefore no advantage of enduring nature has been obtained by assessee and therefore had treated the said expenditure as revenue. Ld.AO rejected submissions of assessee and was of the opinion that technical assistance/know-how has to be treated as intangible asset as per section 32 of the Act. He thus allowed 25% depreciation and balance amount of Rs.35,69,931/-was added back to income of assessee. 12.2. During penalty proceedings Ld. AO levied penalty on said sum for furnishing of inaccurate particulars.

ITA Nos. 6567 and 6568/Del/13 AY:2005-06, 2007-08 Neel Metal Products Ltd. ITA 6377/Del/13 AY 2007-08 ACIT vs. Neel Metal Products Ltd. 12.3. Ld.Sr.DR supported orders of authorities below and submitted that, payment made towards technical know- how/Technical assistance, should have been capitalised by assessee, and therefore amounts to furnishing of inaccurate particulars of income, for which penalty deserves to be confirmed. She placed reliance upon decision of Hon’ble Delhi High Court in the case of CIT vs Zoom Communication Pvt.Ltd., reported in (2010) 191 Taxman 179. 13. We have perused submissions advanced by both sides in the light of records placed before us. 13.1. It is observed that assessee offered explanation which has not been found false by Ld.AO or by Ld.CIT(A). Further in our considered opinion claim of capital versus revenue expenditure itself is debatable and therefore cannot be subject matter of penalty by way of concealment or filing of inaccurate particulars. We are therefore inclined to delete penalty levied by Ld.AO. 13.2. Accordingly this ground raised by assessee stands allowed. 14. In the result appeal filed by assessee for assessment year 2005-06 stands allowed. 15. Assessment year 2007-08 15.1. It is observed that in assessee’s appeal, penalty has been levied on disallowance of depreciation on electric fittings at Rs.4,74,343/-. 15.2. We have already decided this issue in assessee’s own appeal for assessment year 2005-06 in preceding paragraphs. It is observed that facts are similar for assessment year 2007-08.

ITA Nos. 6567 and 6568/Del/13 AY:2005-06, 2007-08 Neel Metal Products Ltd. ITA 6377/Del/13 AY 2007-08 ACIT vs. Neel Metal Products Ltd. Respectfully following the same under such circumstances, in our view penalty is not sustainable. 15.3. Accordingly Ground No. 2 raised by assessee stands allowed. 16. Ground No. 1 raised by assessee is general in nature and therefore do not require any adjudication. 17. In the result appeal filed by assessee for AY 2007-08 stands allowed. 18. Appeal filed by revenue In appeal filed by revenue grounds raised are against penalty deleted by Ld.CIT(A). Revenue is aggrieved by the observations of Ld.CIT(A) that addition of Rs.51,74,135/- was an erroneous claim, and in absence of any concealment or furnishing of inaccurate particulars, cannot be a ground for imposing of penalty. 18.1. It is observed that revenue is aggrieved merely on the ground that first appellate authority in quantum proceedings confirmed addition, and further this Tribunal held that Electrical fittings like transformer, panel switchgear, PVC cable poly cable, electric generating set, Electrical Control Panel etc are to be depreciated at 10% 18.2. It is observed that Hon’ble Delhi High Court in assessee’s own case reported in (2014) 42 Taxmann.com 337 for assessment year 2007-08 in quantum appeal has held rate of depreciation to be 15%. Further, we agree with Ld.CIT(A) that it is a case where assessee’s claim was debatable. Hon’ble High Court has upheld depreciation at 15% as claimed by assessee.

ITA Nos. 6567 and 6568/Del/13 AY:2005-06, 2007-08 Neel Metal Products Ltd. ITA 6377/Del/13 AY 2007-08 ACIT vs. Neel Metal Products Ltd. 18.3. Respectfully following the same, we are of the view penalty is not sustainable on the addition. 18.4. Accordingly grounds raised by revenue stands dismissed. 19. In the result appeal filed by revenue stands dismissed. Order pronounced in the open court on 29th January, 2019. Sd/- Sd/- (PRASHANT MAHARISHI) (BEENA A PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dt. 29th January, 2019 *Gmv