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Income Tax Appellate Tribunal, MUMBAI BENCH “I”, MUMBAI
Before: SHRI G.S. PANNU & SHRI SANDEEP GOSAIN
PER G.S. PANNU, AM :
The captioned appeal filed by the Revenue pertaining to Assessment Year 1995-96 is directed against an order passed by CIT(A)-27, Mumbai dated 29.06.2007, which in turn arises out of an order passed by the Assessing Officer under Section 271(1)(c) of the Income Tax Act, 1961 (in short ‘the Act’) dated 31.03.2006.
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The sum and substance of the dispute in the present appeal is with regard to penalty of Rs. 6,44,09,354/- imposed by the Assessing Officer, which has since been deleted by the CIT(A).
Briefly put, the relevant facts are that subsequent to an assessment finalised by the Assessing Officer u/s 143(3) of the Act dated 30.09.1998 determining the total income at Rs.16,23,79,710/-, the Assessing Officer vide order dated 31.03.2006 imposed a penalty u/s 271(1)(c) of the Act amounting to Rs.6,44,09,355/-. The said penalty has been levied on four elements of income which have been detailed by the CIT(A), and which read as under :-
Sr. Particulars Amount Penalty Levied No. Rs. Rs. 1 Disallowance of depreciation on leased 45,71,364 21,02,827 assets capitalized in A.Y. 1994-95 2 Disallowance of depreciation on sale 4,02,71,266 1,85,24,782 and leaseback assets 3 Disallowance of depreciation on asset 2,08,056 95,705 leased to Tata Telecom 4 Excess depreciation allowed in respect 9,49,69,652 4,36,86,040 of vehicles Total 14,00,20,338 6,44,09,354
At the time of hearing, it was a common point between the parties that so far as the penalty leviable with respect to the aforestated item nos. 1 & 2 are concerned, the same does not survive. It has been pointed out that insofar as penalty levied in respect of item (1), i.e. disallowance of depreciation on leased assets capitalised in preceding Assessment Year of 1994-95 is concerned, such disallowance amounting to Rs.45,71,364/- has been set-aside by the Tribunal in the quantum proceedings for Assessment
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Year 1994-95 vide ITA No. 1472/Ahd/2005 dated 25.01.2017. In this context, we find that the Tribunal vide its order dated 25.01.2017 (supra) for Assessment Year 1994-95 has set-aside the matter back to the file of the Assessing Officer. Similarly, in the instant Assessment Year of 1995-96 vide order in ITA No. 1473/Mum/2005 dated 03.01.2018, the Tribunal following its earlier decision in Assessment Year 1994-95 dated 25.01.2017 (supra) has restored the matter back to the file of the Assessing Officer to decide the issue afresh in accordance with law. Thus, the addition on the basis of which the penalty has been levied by the Assessing Officer does not survive and, therefore, on this aspect we affirm the ultimate decision of the CIT(A), albeit on a different ground.
Further, so far as the penalty on the disallowance of Rs.4,02,71,266/- representing disallowance of depreciation on sale and lease back contained in item (2) above is concerned, in the quantum proceedings the Tribunal vide its order dated 03.01.2018 (supra) has deleted the disallowance made by the Assessing Officer. The Tribunal in its order dated 03.01.2018 (supra) directed the Assessing Officer to allow the depreciation as claimed by the assessee. Thus, the disallowance which has formed the basis for imposition of penalty no longer survives and, therefore, on this aspect also, we uphold the decision of CIT(A) in deleting the penalty, albeit on a different ground.
Insofar as the penalty levied on disallowance of depreciation on assets leased to Tata Telecom Ltd. is concerned, the amount of penalty is Rs.95,705/-. This penalty was levied as the Assessing Officer disallowed depreciation of Rs.2,08,056/- on assets leased to Tata Telecom Ltd. on the ground that the asset in question was not put to use by the lessee within the
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stipulated period. The relevant discussion in this regard is contained in para 7.1 and 8 of the assessment order passed u/s 143(3) of the Act dated 30.03.1998, a copy of which is placed on record. In this context, we find that the relevant discussion in the assessment order reveals that a verification exercise was carried out by the Assessing Officer with Tata Telecome Ltd., who responded by saying that the asset in question was installed on 18.03.1995. Though the Assessing Officer denied the claim of depreciation on the ground that the asset was not installed at the time of claim of depreciation, assessee did not file any further appeal on this aspect. So, however, in the penalty proceedings, assessee pointed out that it was in the business of leasing and that it claimed depreciation on the leased assets at the time of entering into the Leasing agreement and that even the Lease Management fees was also received during the year itself. Assessee had referred to the judgment of Hon'ble Madras High Court in the case of CIT vs First Leasing Co. of India, 216 ITR 455 (Mad) and Hon'ble Karnataka High Court in the case of CIT vs Shaan Finance (P). Ltd., 199 ITR 409, which was subsisting at the relevant point of time, to say that actual use of asset by lessee was not relevant so long as assessee, which was in the business of leasing, had leased the relevant asset, thus putting to use such asset for its business of leasing. On this aspect, the learned representative for the assessee also pointed out that ownership and use by the assessee are the relevant criteria for allowability of depreciation in a leasing business and not the use of asset by the lessee. In any case, it has been pointed out that at the time of filing of the return of income on 30.09.1998, the claim was bona fidely made based on the legal understanding of the issue, as supported by the judgment of the Hon'ble Madras High Court, which had taken a view that where the business of the assessee was leasing of assets, assessee must be
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considered as having used the machinery for the purpose of its business once the assets have been deployed in the business of leasing. At the time of hearing, the learned representative pointed out that, in any case, the dispute is only with regard to the year of allowability of allowance of depreciation inasmuch as in the subsequent year, assessee has indeed been allowed depreciation on such leased asset.
On the other hand, the ld. DR appearing for the Revenue justified the levy of penalty on the ground that disallowance of depreciation made by the Assessing Officer stood finalised. Reliance was also placed on the decision of the Mumbai Bench of the Tribunal in the case of B.R. TV vs ACIT, [2011] 14 taxmann.com 2 (Mum) justifying the levy of penalty.
We have carefully considered the rival submissions. Insofar as the depreciation claim of Rs.2,08,056/- on assets leased to Tata Telecom Ltd. is concerned, we find that it is not a case where the respondent-assessee has been found to be ineligible for the claim of depreciation. Factually, it has been pointed out that in the subsequent year, assessee has been allowed depreciation. Thus, the only dispute in this year is as to the correct year of starting the claim of depreciation. Pertinently, although the Assessing Officer in para 7.1 of the assessment order notes that the lessee, i.e. Tata Telecom Ltd., confirmed that the asset has been installed on 18.03.1995, yet he has proceeded to disallow the depreciation on the ground that the asset was not being used on the date of claim of depreciation. What one can understand from the discussion is that as per the Assessing Officer, not only the installation, but use of the asset by the lessee was also essential so as to enable the assessee-lessor to claim depreciation. In our considered opinion,
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whether or not the proposition canvassed by the Assessing Officer is merited is not the issue before us. We are only concerned with the levy of penalty u/s 271(1)(c) of the Act, and for that purpose, we find that none of the particulars filed by the assessee could be said to be incorrect. Furthermore, the claim was made on a bona fide ground, based on the understanding of the then subsisting judgment of the Hon'ble Madras High Court in the case of First Leasing Co. of India (supra) as well as the judgment of Hon'ble Karnataka High Court in the case of Shaan Finance (P). Ltd. (supra). Under these circumstances, in our view, the penalty u/s 271(1)(c) of the Act is not justifiable and, therefore, we hereby affirm this aspect of the decision of CIT(A) also, albeit on a different ground.
The last issue on which penalty has been levied is excess depreciation allowed in respect of vehicles amounting to Rs.9,49,69,652/-. In this context, the learned representative for the assessee had explained that the dispute revolves around depreciation allowable on trucks leased out by the assessee. Assessee had claimed depreciation on trucks leased out @ 40%. The learned representative explained that the Commissioner, invoking his jurisdiction u/s 263 of the Act, had directed disallowance of depreciation allowed on trucks @ 40% and instead, restricted the same to 20%. In an appeal against the order of Commissioner u/s 263 of the Act, the Tribunal in its order dated 31.10.2007 in ITA No. 2139/Ahd/2003 partially modified the direction of the Commissioner and directed the Assessing Officer to verify as to whether the hirers had in turn used the vehicles in the business of running them on hire, and if so, the depreciation allowable would be @ 40%. The learned representative explained that initially when the Assessing Officer gave effect to the order of Commissioner passed u/s 263 of the Act,
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allowance of depreciation was restricted to 20% and thereby depreciation of Rs.9,49,69,652/- was disallowed. The learned representative pointed out that in an appeal against the aforesaid disallowance the same has since been scaled down by the CIT(A) to Rs.1,93,24,793/-. It was, therefore, contended that the disallowance which is required to be considered for levy of penalty, if at all, has to be of Rs.1,93,24,793/- as the order of CIT(A) had since become final on this aspect. In this context, our attention has also been invited to the depreciation schedule for Assessment Year 1995-96 wherein depreciation has been claimed on vehicles on varying rates, and so far as depreciation @ 40% is concerned, the claim made was to the tune of Rs.3,35,75,312/-. The learned representative explained that the depreciation schedule showed that assessee had claimed depreciation on vehicles at rates varying between 20% and 40%. The learned representative explained that the judgment of the Hon'ble Bombay High Court in the case of CIT vs Kotak Mahindra Finance Ltd., 265 ITR 119 (Bom.) had sought to restrict the depreciation claim to 20% unless it was shown that the vehicles given on lease was used by the hirers in their business of hiring out the trucks. The learned representative explained that the judgment of the Hon'ble Bombay High Court was delivered in 2003 whereas assessee had claimed depreciation in its return of income filed on 30.11.1995. It is pointed out that the difference in the rate of depreciation claimed and allowed by the Assessing Officer does not constitute concealment of income or furnishing of inaccurate particulars of income u/s 271(1)(c) of the Act.
On this aspect, the ld. DR appearing for the Revenue pointed out that higher rate of depreciation of 40% was available only on vehicles used for the business of hire and, therefore, the stand of Assessing Officer to restrict
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the depreciation to 20% was quite justified and it also showed that an incorrect claim was made for which penalty u/s 271(1)(c) of the Act was leviable.
We have carefully considered the rival submissions. On this aspect, the only dispute between the assessee and the Revenue is to the merit of depreciation claimed by the assessee @ 40% on trucks. Notably, the higher rate of depreciation @ 40% was allowable in case of vehicles which were used in the business of running them on hire. Initially, in the assessment proceedings, depreciation claimed @ 40% was allowed as such, but the Commissioner vide his order dated 06.03.2003 passed u/s 263 of the Act directed the Assessing Officer to modify the depreciation allowable on vehicles and restricted the same to 20% and not at 40%, as claimed by the assessee. This direction of the Commissioner came-up in appeal before the Tribunal and vide its order dated 31.10.2007 (supra), the Tribunal noticed the judgment of the Hon'ble Bombay High Court in the case of Kotak Mahindra Finance Ltd. (supra) wherein it has been held that where the hirer is running the vehicles on hire, higher rate of depreciation is to be allowed to the finance company who has leased the vehicles to such hirer. Based on the said judgment of the Hon'ble Bombay High Court, the Tribunal, in- principle, approved invoking of jurisdiction of the Commissioner u/s 263 of the Act, so however, it directed the Assessing Officer to verify as to whether the hirers had used the vehicles in the business of running them on hire or not? If it was so found, then, assessee would be entitled to higher rate of depreciation and not otherwise. We are narrating these aspects only to bring home the point that the claim of depreciation made by the assessee on trucks @ 40% in return of income, and which stood accepted initially in the
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assessment u/s 143(3) of the Act, was not a claim which was patently inadmissible on the face of it. It is also worthwhile to note that this aspect of the controversy sprung-up only consequent to the judgment of the Hon'ble Bombay High Court in the case of Kotak Mahindra Finance Ltd. (supra) and it was not a case where the claim of assessee was bona fidely wrong from the beginning itself. At this stage, we may also put on record an assertion made by the learned representative for the assessee, and which has not been controverted, which is to the effect that in the preceding as well as in the subsequent assessments, the Assessing Officer himself has allowed depreciation on trucks leased out @ 40%. Considering all these aspects, in our view, restricting the allowance of depreciation on trucks from 40% to 20% would not justify levy of penalty u/s 271(1)(c) of the Act in the facts and circumstances of the present case. Thus, on this aspect also, we find no reasons to distract from the ultimate decision of CIT(A) in deleting the penalty, albeit on a different ground.
Resultantly, appeal of the Revenue is dismissed, as above.
Order pronounced in the open court on 10th August, 2018.
Sd/- Sd/- (SANDEEP GOSAIN) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Date : 10th August, 2018 *SSL*
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Copy to : 1) The Appellant 2) The Respondent 3) The CIT(A) concerned 4) The CIT concerned 5) The D.R, “I” Bench, Mumbai 6) Guard file By Order
Dy./Asstt. Registrar I.T.A.T, Mumbai