Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2014 (7) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (7) TMI 764 - AT - Income TaxClaim of depreciation – Concept of block assets - Held that:- AO and FAA had disallowed the claim of the assessee on the ground that assessee had not used the assets for business during the year – the decision in Dineshkumar Gulabchand Agarwal Versus Commissioner Of Income-Tax And Another [2003 (1) TMI 19 - BOMBAY High Court] followed - the assessee had argued that assets were ready for use and therefore depreciation was rightly claimed by him, even though he had not used the asset - the assessee was not entitled to claim depreciation if the asset was not used - for claiming depreciation, assessee must prove use of asset and in the case under consideration AO and the FAA had given a categorical finding that the assessee had not used the assets during the year under appeal - depreciation was allowed it must have been proved by the assessee that it had used the assets - there is no evidence of use of assets – assessee has not brought to our notice any judgment of the jurisdictional high court which had reversed the judgment of Dineshkumar Gulabchand Agrawal – Decided against Assessee. Penalty proceedings u/s 271(1)(c) of the Act – Held that:- The deduction/exemption was claimed u/s. 80IB and 10(38)of the Act - the assessee had not paid not STT tax and non-payment of said tax was within the knowledge of the assessee. Even then the assessee made a claim u/s. 10(38)of the Act - Such a claim cannot be termed an inadvertent mistake. Assessees are required to file return showing the correct taxable income and not to claim a deduction/exemption/rebate that is not due to them - If two views are possible for such a claim assessee can have benefit of existence of two possible views - It is a simple case of concealment of income and filing of inaccurate particular - the auditors had expressly made a note in notes to the accounts and determined the quantum of eligible 80IB deduction - AO had rightly levied penalty for the two amounts u/s. 271(1)(c)of the Act and the FAA was justified in confirming the same. In respect of penalty levied for claim of depreciation two views were possible about the claim at the time of filing of return of income - if the assets are ready for use depreciation can be claimed. FAA was justified in following the judgment of the jurisdictional high court while deciding the appeal filed by the assessee against the disallowance - the assessee had not produced any evidence of use of the assets - addition or disallowance of any amount should not result in automatic levy of penalty u/s 271(1)(c)of the Act - explanation of the assessee was bonafide and two views were possible about the claim - penalty levied for 80IB deduction and 10(38) exemption is confirmed, whereas penalty for disallowance of depreciation is set aside – Decided partly in favour of Assessee.
|