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2019 (3) TMI 1003 - HC - Income TaxPenalty u/s 271(1)(c) - defraud by making false depreciation claim - pant and machinery, namely three Pay Loaders in question were not actually used - proof of conscious concealment or a deliberate filing of inaccurate particulars - existence of mens rea or guilty animus - HELD THAT:- The words 'use' in Section 32 is not restricted to actual, full or continuous user of Plant and Machinery. It includes within its ambit the status of 'kept ready for use' or 'ready for use' as well. A partial user is also sufficient to apply Section 32 of the Act. For the reasons best known to the assessee, may be to buy peace and to avoid litigation or under pressure not knowing the correct legal position, he gave up the said claim of depreciation under Section 32 but, that does not mean that the assessee admitted the guilt of giving a wrong explanation or a false explanation or having concealed his income or filing inaccurate particulars. There was a total absence of mens rea or guilty animus on the part of assessee in present case. Giving up of the claim of depreciation could not automatically entail the penalty under Section 271(1)(c) of the Act. The imposition of penalty is neither automatic nor is expected to be imposed even if the bona fide explanation of the assessee is not finally accepted by the statutory authorities of the Act. The burden of proving the guilty animus on the part of the assessee is on the Revenue, like on Prosecution in criminal cases and no such negative burden could be cast upon by the assessee himself. No material on record brought by A which would indicate, much less, prove the guilty animus on the part of the assessee in the present case. Therefore, the restoration of penalty in the present case by the Second Appellate Authority, Tribunal, should fall to the ground. - Decided in favour of assessee.
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