Steadfast Corporation Limited, ... vs Department Of Income Tax
- CitationITA No.1225/Hyd/2013)
Ratio decidendi
The rule this decision rests on
The Tribunal may recall its own order under the miscellaneous application procedure where an apparent mistake on the record exists, namely that a penalty issue raised before it has not been decided, and may confine the recall to considering that specific penalty component. Where a penalty levied on one addition is deleted in consequence of the deletion of another addition, but a separate penalty relatable to a distinct addition, which was confirmed by the first appellate authority and not challenged in appeal, has not been considered, the omission to decide that penalty is a mistake apparent on the face of the record that warrants recall of the order to that limited extent.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
ACIT, Circle 2(1) Steadfast Corporation Ltd Hyderabad Vs. (formerly known as M/s Infobahn Technologies Ltd), Hyderabad (Appellant) (Respondent)
For Revenue: Shri Ramakrishna Bandi, DR For Assessee : Shri C.P. Ramaswamy
Date of Hearing : 20.02.2015 Date of Pronouncement : 17.04.2015
ORDER
Per Smt. Asha Vijayaraghavan, J.M.
This miscellaneous application preferred by the Revenue is against the order of the Tribunal in ITA No.1225/Hyd/2013 dated 1.4.2014. The AO for the A.Y 2002-03 levied a penalty of Rs.49,45,397 in addition of Rs.1,03,13,520 made under the transfer pricing regulations and addition on account of disallowance of depreciation of Rs.60,63,000 in respect of solar power packs.
2. In respect of the addition made under the transfer pricing regulations, pursuant to the order of the Tribunal on this issue in ITA No.962/Hyd/2003 dated 6.8.2012 in the quantum appeal, the AO while giving effect to the order of the ITAT had deleted
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this addition. As regards addition on account of depreciation, the issue was that the assessee claimed depreciation on WDV method on the solar packs on the ground that they were leased. However, the AO concluded that the amount shown by the assessee as advance rent received was nothing but sale price and hence treated the transaction as sale. He made the consequential adjustment and disallowed the depreciation claimed on solar power packs.
3. On appeal, the CIT (A) had confirmed this addition. Assessee in their appeal against the addition made before the Tribunal in ITA No.962/Hyd/2003 had argued only about the addition on account of transfer pricing. This would mean that in so far as the quantum addition is concerned, the addition on account of depreciation in respect of solar power packs would remain sustained on the basis of the order of the CIT (A), in as much as the order of the CIT (A) confirming the addition on account of depreciation has not been questioned by the assessee on appeal.
4. The CIT (A) in his order on the assessee's appeal against the levy of penalty had confirmed the penalty levied on account of disallowance on depreciation.
5. In these circumstances, the Department has raised this Miscellaneous Application that while considering the penalty levied in the impugned order, the issue regarding the penalty levied on account of addition to depreciation was not considered separately and the entire penalty has been deleted on the basis
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of the AO deleting the adjustment made on transfer pricing. There is a mistake apparent on record as the levy of penalty in so far as it is relatable to the disallowance of depreciation on solar packs has not been decided. In this view of the matter, we recall the order of the ITAT in ITA No.1225/Hyd/2013 only for the purpose of considering the penalty levied by the AO and confirmed by the CIT (A) regarding the disallowance of solar packs.
6. In the result, miscellaneous application filed by the Revenue is allowed.
Order pronounced in the Open Court on 17th April, 2015.
Sd/- Sd/- (B. Ramakotaiah) (Asha Vijayaraghavan) Accountant Member Judicial Member
Hyderabad, dated 17th April, 2015.
Vnodan/sps Copy to:
1. Asstt. Commissioner of Income Tax, Circle 2(1) Hyderabad
2. M/s. Steadfast Corporation Ltd C/o Dr. C.P. Ramaswamy, Advocate, Flat No.303 Gitanjali Apartments, Plot No.108 Srinagar Colony, Hyderabad 500072
3. The CIT(A)-III Hyderabad
4. The CIT - II Hyderabad
5. The DR, ITAT, Hyderabad
6. Guard File
By Order
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