TMI Blog2016 (12) TMI 1580X X X X Extracts X X X X X X X X Extracts X X X X ..... inding given by CIT(A) by relying on various judicial pronouncements are as per material on record. Accordingly, we do not find any reason to interfere in the findings recorded by the CIT(A) resulting into deletion of penalty. - Decided against revenue. - ITA No. 1533/Mum/2014 - - - Dated:- 5-12-2016 - R. C. Sharma (Accountant Member) And Ravish Sood (Judicial Member) For the Revenue : A. Ramachandran For the Assessee : Jitendra Jain ORDER R. C. Sharma (Accountant Member) This is an appeal filed by the Revenue against the order of CIT(A) for the assessment year 1997-1998, in the matter of penalty imposed u/s. 271(1)(c) of the IT Act. 2. Rival contentions have been heard and record perused. 3. The facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be levied. The A.O. disagreeing with the submissions of the appellant levied penalty u/s.271(1)(c). Hon'ble Supreme Court in the case of Price Waterhouse Coopers Pvt. Ltd. vs. CIT 348 ITR 306 (SC) held that when there is a bonafide and inadvertent mistake penalty should not be levied. Further in CIT vs. Somany Evergree Knits Ltd. 352 ITR 592 (Born) wherein it is held as under: The Tribunal held that the excess depreciation claimed for the assessment year 2003-04 was on account of bonafide and inadvertent mistake on the part of the assessee. In any case, during the course of assessment proceedings, the assessee realized its mistake and pointed it out. The Tribunal held that the mistake should not be visited with penalty und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t if appellant in his explanation states that there is inadvertent mistake then penalty cannot be levied u/s.271(1)(c). Further in our case also appellant: was insisting from the beginning that it is inadvertent mistake, hence, penalty cannot be levied. Further in similar case of Oscar Freight P. Ltd. vs. ITO (ITA No.1707/Mum/2010 where the facts are identical to our case, the Hon'ble ITAT has held as under: 6. We. have considered the issue. As far as the facts are concerned there is no doubt that all the three trucks were purchased before 30th September, i.e. from 27th August to 9th September, 2003. It is also noticed that the assessee has spent an amount of ₹ 7, 70, 731/- for building bodies of the above trucks. Even though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reciation. We are of the opinion that just because the claim of depreciation was not allowed in full, the facts does not lead for levy of penalty under section 271(1)(c) on the reason of concealment of income or furnishing of inaccurate particulars. Making incorrect claim does not amount to furnishing of inaccurate particulars unless with mala fide intention as held by the Hon'ble P L Haryana High Court in the case of CIT vs. Rubber Udyog Vikas Pvt. Ltd. 3351TR 558. On similar facts the lTAT Chandigarh Bench in the case of DClT vs. Shahbad Co-operative Sugar Mills 129 TTJ (Chd) 92 came to the conclusion. mat though assets were added after 3CJth September and assessee claimed depreciation for the full year, there was a bonafide mistake w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, in the present case we do not see any malafide intention of the assessee in claiming depreciation at full (40%) on the assets whereas as per the proviso the claim is to be restricted to 50% of the allowable amount, if the assets are not put to use for more than 180 days in an year. Even though the AO made a strict cut off date of 30th September, 2003 technically speaking the 180 days restriction can start on 3rd or 4th October 2003 onwards. As pointed out earlier the trucks were registered by 14th October, 2003. This indicates that the trucks were ready for use around the first week of October, 2p03. It cannot be stated that assessee malafidely claimed more depreciation. It can be a bonafide mistake in claiming full depreciation on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (259 CTR (Born.) 383) 5 CIT v. Glow Tech Steels P. Ltd. (280 ITR 133) (Guj.) 6 CIT v. Societex (24 taxmann.com 309) (Delhi) 7 DCIT v. Shahabad Co-Op. Sugar Mills (129 TT] 92) (Chandigarh Trib.) 8 Dynatron Pvt. Ltd. v. DCIT (36 CCH 0110) (Mum. Trib.) 9 Rabo India Finance Ltd. v. DCIT (30 CCH 0417) (Mum. Trib.) 10 Oscar Freight P. Ltd. v. ITO (ITA No. 1707/Mum./2010) (Mum. Trib.) 8. We have considered rival contentions and deliberated on the judicial pronouncements referred by lower authorities in their respective orders and cited by learned AR and DR during the course of hearing before us in the context of actual facts of the instant case. From the record we found that penalty has been levied with respect to the inadv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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