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2019 (8) TMI 925 - ITAT MUMBAIPenalty u/s 271(1)(c) read with Section 274 - claim for set off as set out of business expenses and depreciation against ‘Income from House Property’ - as alleged no business being conducted by the assessee during the previous year relevant to impugned assessment year, still the assessee sought to set off business losses and depreciation against ‘income from house property’ by invoking provisions of Section 71 - HELD THAT:- The assessee in statement of fact filed with tribunal has taken a feeble plea that letting out of this commercial office is business of the assessee wherein by which the assessee is itself contradicting its own stand of offering said income under the head ‘Income from House Properties’. The assessee owned only one property during the previous year under consideration as described above in this order situated at Laxmi Tower at BKC, Mumbai which was let out for 10 months from June 2009 to March 2010. There is no other activity of the assessee apart from letting out this commercial premises. The tribunal in quantum has also decided that the assessee has not done any business during the year under consideration and the said finding of fact has attained finality. Decision of Hon’ble Supreme Court in the case of Raj Dadarkar & Associates v. ACIT [2017 (5) TMI 586 - SUPREME COURT] which elaborately discussed the chargeability of income to tax under the head ‘Income from House Property’ also rebut the aforesaid contention of the assessee that letting out of the commercial office is business of the assessee. The assessee was fully aware that there was no business conducted by it during the entire previous year and its expenses as well deprecation on assets can neither be allowed as business deduction nor it can be allowed as set off against other incomes. the claim for set off as set out by assessee by setting off business expenses and depreciation against ‘Income from House Property’ was non-genuine act of the assessee which lacked bonafide which was undertaken to reduce tax-liability and was rightly held against assessee in quantum by all the three authorities upto ITAT , concurrently. Under these circumstances and factual matrix of the case , we are not inclined to interfere with the well reasoned appellate order passed by learned CIT(A), which we uphold/confirm. Thus, in nut-shell we confirm and uphold the penalty levied by the AO u/s 271(1)(c) of the 1961 Act which was later confirmed by learned CIT(A). The assessee fails in this appeal.
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