TMI Blog2010 (3) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... take and clue to clerical error’ the depreciation was claimed at 15 per cent., seems plausible – penalty canceled – in favor of assessee - IT APPEAL NO. 1467 (AHD.) OF 2007 - - - Dated:- 31-3-2010 - G.D. AGARWAL AND BHAVNESH SAINI, JJ. Smt. Neeta Shah for the Appellant. ORDER G.D. Agarwal Vice-President. - This is the revenue s appeal against the order of the Commissioner of Income-tax (Appeals), Gandhinagar, Ahmedabad, dated 2-1-2007. 2. At the time of hearing before us none appeared on behalf of the asses-see though the notice was duly served by registered post. Therefore, we proceed to dispose of the appeal ex parte qua the assessee. The only ground raised by the revenue in the appeal reads as under : "1. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., the assessment year 2002-03 itself the depreciation was wrongly noted at 15 per cent. but the same was computed and claimed separately at 10 per cent. The rate column was erroneously left unrectified. The rate of depreciation was not modified in the subsequent years but the same chart used for in the assessment year 2002-03 was taken into account in the present assessment year. This resulted in an error in claiming depreciation. Once the error was noticed mistake was rectified in subsequent years by filing revised returns. It was further pointed out that the company was running in heavy losses for the past years and it had accumulated unabsorbed losses and depreciation to the tune of over Rs. 6 crores. The company was also not having an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of penalty is found to be not justified. The observations of the hon ble Gujarat High Court in the case of National Textiles v. CIT reported in [2001] 249 ITR 125 are relevant in this context. In the above case, the court observed as follows (headnote) : In order to justify the levy of penalty, two factors must co-exist, ( i ) there must be some material or circumstances leading to the reasonable conclusion that the amount does represent the assessee s income. It is not enough for the purpose of penalty that the amount has been assessed as income, and ( ii ) the circumstances must show that there was animus, i.e., conscious concealment or act of furnishing of inaccurate particulars on the part of the assessee. The Explanation has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue is aggrieved with the above order of the Commissioner of Income-tax (Appeals) and is in appeal before us. 7. We have heard the learned Departmental representative and perused material placed before us. After considering the orders of the lower authorities as well as the arguments of the learned Departmental representative, we do not find any infirmity in the order of the Commissioner of Income- tax (Appeals). The reduction in the returned loss was mainly on account of reduction in the claim of depreciation. The assessee had claimed the depreciation on the cinema theatre at 15 per cent. which was in fact allowable at 10 per cent. During the assessment proceedings, the assessee itself had furnished the revised chart and worked out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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