Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2008 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2008 (12) TMI 232 - ITAT BOMBAY-JPenalty levied u/s. 271(1)(c) - assessee claimed set off of unabsorbed depreciation and investment allowance - whether there are provisions in the IT Act directly or indirectly through the mechanism of BIFR for the assessee to support the assessee's claim of the unabsorbed investment allowance of age of more than 8 years or not? HELD THAT:- The period of limitation in respect of the brought forward investment allowance has lapsed in the AY 1996-97 itself as held by the AO and upheld by the Hon'ble Tribunal and the assessee should not have claimed the expired brought forward investment allowance. In other words, the assessee made a claim without any support of the law in existence or the order of the BIFR and also against the express provisions of s. 72A(3) or 32A(6) of the Act. Therefore, we came to the conclusion that the assessee wrongly claimed the brought forwarded investment allowance after expiry of eight years in violation of the provisions of ss. 32A(6) and 72A(1). Further, the assessee's explanation, which basically revolves around the order of the BIFR and the provisions of s. 32 of SICA, is neither substantiated nor proved bona fide. In fact, the order of the BIFR does not contain any reference to the issue of the time limitation. Thus, there are no two views on the subject. In the situations, where the AO does not have to disprove the explanation or establish the mala fide in making such wrong and obviously impermissible claims, the amount disallowed in computing the total income of the assessee is deemed to represent the income in respect of which the particulars have been concealed within the meaning of the Expln. 1 to s. 271(1)(c). In these circumstances, assessee's dependence on the order of BIFR is of no use and resultantly, the such explanation of the assessee is a mere formality. Therefore, the belief of the assessee while claiming the said loss in the instant assessment year cannot be held arising out of the bona fide belief. Therefore, this is fit case for levy of penalty. The order of the CIT(A) is reversed. Accordingly, the Grounds the Revenue are allowed.
|