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2015 (4) TMI 910 - ITAT PUNELevy of penalty under section 271(1)(c) of the Income Tax Act, 1961 - Concealment of particulars of Income - Concealment of income - Depreciation claimed on leasehold rights in land as intangible asset - Held that:- In view thereof, where the Tribunal has come to a finding that the assessee is not entitled to the depreciation even under section 32(1)(ii) of the Act in respect of leasehold rights of land, the contention of the assessee that it was not claiming depreciation on land perse but was claiming depreciation on leasehold rights in land which were business or commercial rights and therefore, intangible assets under section 32(1)(ii) of the Act, does not stand the test of time. Where the explanation tendered by the assessee in respect of its claim on depreciation on the leasehold rights of land was found to be untenable, Explanation - 1 to section 271(1)(c) of the Act is clearly attracted and the assessee is exigible to levy of penalty under section 271(1)(c) of the Act. Even otherwise, the perusal of the record reflects that the assessee in the return of income had claimed the depreciation on land perse and not on intangible assets. The said claim was against the provisions of the Act and was thus not bonafide claim made by the assessee. On this account also, the assessee is liable to levy of penalty under section 271(1)(c) of the Act. Another contention raised by the assessee was that merely because the claim by it had been held to be not correct, would not amount to furnishing of in-accurate particulars of income. Reliance in this regard was placed on the ratio laid down by the Hon’ble Supreme Court in Price Waterhouse Coopers [2012 (9) TMI 775 - SUPREME COURT]. The said plea of the assessee does not stand because it is undisputed that the claim made by the assessee, was not bonafide. The claim of the assessee in any case, was not sustainable in law and in view of the above, where the explanation of the assessee is not found to be bonafide, the assessee is liable to levy of penalty under section 271(1)(c) of the Act. Accordingly, we uphold the order of CIT(A) in confirming the levy of penalty under section 271(1)(c) of the Act. - Decided against the assessee.
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