TMI Blog2012 (9) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... it is a revenue expenditure. This by itself goes to show that two views were possible on the issue. Thus, if two views were possible, the explanation offered by it could not said to be false. In any event, none of the authorities below have recorded a finding that the assessee in its return has furnished particulars which are found to be incorrect or erroneous or false. It, therefore, cannot be a claim of furnishing of inaccurate particulars nor can it be said that the explanation tendered by the assessee is false. Since two views are possible, penalty is not exigible u/s 271(1)(c) – Decided in favor of assessee - ITA No.202/LKW/2012 - - - Dated:- 13-6-2012 - SHRI SUNIL KUMAR YADAV, AND SHRI B. R. JAIN, JJ. Appellant by: Shri. Shubh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on so tendered has also not been substantiated by it. He, therefore, imposed penalty amounting to Rs.1.58 lakhs being equal to 100% of the tax sought to be evaded. 4. The ld. CIT(A) took it that the assessee has deliberately clubbed the said capital expenditure with the heading plant and machinery repair without any disclosure of the same in the return of income filed by it. He, therefore, taking it a case of wrong and untenable claim of deduction and relying on the judgment of Hon'ble Delhi High Court in the case of CIT v. Zoom Communication (P.) Ltd. [2010]327 ITR 510 (Delhi) upheld the view entertained by the assessing authority and dismissed the assessee s appeal before him. 5. The ld. counsel for the assessee, Shri. Shubham Agraw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be disallowable on an application of this test. If the advantage consists merely in facilitating the assessee's business to be carried on more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future.", the matter requires consideration on the grounds raised in appeal. 7. Since two views are possible, the explanation in penalty proceedings could not be termed to be false and as such penalty under section 271(1)(c) of the Act shall not be leviable. Reliance has been placed on paras 18 19 reproduced as under in the judgment rendered by Hon'ble Delhi High Court in the case of CIT v. Zoom Communication (P.) Ltd. (supra) which has strongl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot sustainable in law, by itself, will not amount to furnishing of inaccurate particulars. Merely because the assessee had claimed expenditure and the claim was not accepted or was not acceptable to the Revenue, that by itself, would not attract penalty under section 271(1)(c) of the Act. It, therefore, has been contended that penalty so imposed needs to be cancelled. 9. On the other hand, the ld. D.R., Shri. K. C. Meena, supporting the decision taken by the authorities below, contends that this was not a case of current repairs. The assessee had replaced the asset which is not for renewal or restoration but for preserving or maintaining its existing asset only. The claim made by the assessee was not tenable and as such penalty under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e possible on the issue. Thus, if two views were possible, the explanation offered by it could not said to be false. In any event, none of the authorities below have recorded a finding that the assessee in its return has furnished particulars which are found to be incorrect or erroneous or false. It, therefore, cannot be a claim of furnishing of inaccurate particulars nor can it be said that the explanation tendered by the assessee is false. Since two views are possible, penalty is not exigible under section 271(1)(c) of the Act as has also been held by Hon'ble Calcutta High Court in the case of Durga Kamal Rice Mills v. Commissioner of Income-tax [2004] 265 ITR 25 (Cal). The Apex Court in the case of CIT v. Reliance Petroproducts Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
