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TMI Blog2012 (7) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... I.T. Act, ignoring that: (a) the additions made in the assessment order were not owing to difference of opinion or routine disallowance to warrant the application of the verdict of Hon'ble Supreme Court in Reliance Petro Products (P) Ltd. (2010) 230 CTR 320 and Hon'ble Delhi High Court in CIT Vs. Escorts Finance Ltd. (2009) 28 DTR 293. In the assessment order it was clearly held that the claim of the assessee company of short term capital loss of Rs. 93,73,273/- is not bona fide. (b) When the assessee company was confronted with this fact, it accepted its mistake and filed a revised computation of income vide letter dated 13-10-2009 and withdrew its claim of short term capital loss. (c) Further, in the assessment order it was clearly he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the course of assessment proceedings, assessee filed a revised computation dated 13-10-2009, by following note: "2. The assessee has discarded assets during the year on which there was a loss of Rs. 1,21,67,167/- as per the books of accounts. The same has been added back in the computation of taxable income. The assessee has claimed short term capital loss of Rs. 93,73,273/- in the computation of taxable income. In the depreciation chart, the same is appearing as a separate block and accordingly the same was considered as short term capital loss as the entire asset was discarded. However, during the course of assessment proceedings, the assessee has noticed that there are certain other assets having same depreciation rate of 15% hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utation by withdrawing the short term capital loss, the depreciation claim was increased from Rs. 16,10,863/- to Rs. 30,16,854/-. Thus, the claim of short term capital loss had a consequent effect. This establishes the bona fides of the assessee. (iii) Apropos bad debts, the assessee was under bona fide belief that the debts were not prima facie recoverable. The disclosure was made in the return and on that basis claim of return was made. Assessee having been assessed at losses did not pursue the matter in further appeal which does not mean, the assessee is liable for penalty. (iv) Reliance was placed on the following: - Narangs Hotet Private Ltd. Vs. ITO (2000) 74 ITD 190 (ITAT Mum.)(SB). - CIT v. GIC of India (No.2) 254 ITR 204 (Bom.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is before us. 4. Ld. DR relies on the judgment of Hon'ble Delhi High court in the case of Zoom Communication 327 ITR 510 for the proposition that claim which is prima facie disallowable cannot be made by the assessee and it amounts to concealment of income. Further reliance was placed on CIT Vs. Escorts Finance Ltd. 28 DTR 293. It is pleaded that Hon'ble Supreme Court in the case of UOI Vs. Dharmendra Textile Processors (2007) 212 CTR (SC) 432 has held that penalty is a civil liability and the burden for establishment of mens rea is not on the department. Assessee made wrong claim in the return and a subsequent revision thereof will not obviate the act of furnishing inaccurate particulars in the original return. 5. Learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not leviable. Further reliance is placed on Hindustan Steels Ltd. 83 ITR 26 for the proposition that penalty should not be imposed only because it is lawful to do so. Assessee's income being assessed at loss figure and there being no tax advantage, the penalty was rightly deleted by ld. CIT(Appeals). (v) Hon'ble Supreme Court in the case of Dharmendra Textiles (supra) has ruled that the liability for penalty is strict civil liability and the same is not leviable in case where the facts of the case so warrant and assessee gives proper explanation. 6. We have heard rival contentions and gone through the relevant material available on record. It has not been disputed that the assessee had made proper disclosure about the claim of short term ..... X X X X Extracts X X X X X X X X Extracts X X X X
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