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2021 (1) TMI 532 - AT - Income TaxLevy of penalty u/s 271AAA - concealed income on account of excess claim of depreciation - withdrawal of excess claim of depreciation during assessment proceeding post to search on 05.05.2011 carried out u/s 132 - HELD THAT:- We find that the Ld. A.O has not mentioned specific charge in the notice as provided u/s 271AAA r.w.s. 274 of the Act. Rather Ld. A.O has merely mentioned one line imported from section 271(1)(c) of the Act which in the instant case is not applicable on the assessee. On going through the above reproduced defective notice we find that similar notice was issued to another group concern of the assessee M/s Keti Toll Infrastructure Ltd wherein penalty u/s 271AAA of the Act was deleted by this Tribunal. So is the notice being defective and not in accordance with law has been issued in the case of assessee for Assessment Year 2011-12 and 2012-13 the penalty proceedings u/s 271AAA are held to be void ab initio. We accordingly delete the penalty levied u/s 271AAA. Excess claim of depreciation - Firstly the excess depreciation claimed pertains to the specified year under consideration, secondly the alleged undisclosed income in the form of excess depreciation was admitted during the course of search, thirdly assessee has substantiated the manner in which income has been derived and lastly as regards the demand of tax the same is not applicable since there was no tax on surrender of depreciation claim withdrawn during the assessment proceedings since there were losses. We are of the view that on merit also the assessee deserves the relief and we accordingly allow the grounds raised on merits by the assessee and delete the penalty u/s 271AAA - Decided in favour of assessee.
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