TMI Blog2012 (9) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... oss and surrendering part of the depreciation would only result in reduction of loss. Either way the assessee is not saddled with any tax liability. Under these circumstances, the assessee had agreed to forego part of its claim for depreciation. The fact remains that in the subsequent AY, the Revenue has allowed the claim of the assessee for depreciation on these assets. Under these circumstances, claim of the assessee was bonafide, and CIT (A) has rightly deleted the penalty u/s 271(1)(c) - Decided in favor of assessee - ITA No.449 /DEL/2012 - - - Dated:- 3-7-2012 - Shri J. Sudhakar Reddy, And Shri C.M. Garg, JJ. ASSESSEE BY :Smt.Anshu Khurana, CIT DR REVENUE BY : Shri Pradeep Dubidia R.K. Kapoor, F.C.A, ORDER PER J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) Whether Ld. CIT (A) was correct on facts and circumstances of the case and in law in canceling the penalty of Rs. 6,05,196/- imposed by the AO u/s 271 (1) (c). (b) The appellant craves leave, to add, alter or amend any ground of appeal raised above at the time of the hearing. 3. Smt Anshu Khurana, learned DR submitted that the assessee had admittedly made a wrong claim and when it was cornered, it surrendered part of its claim for depreciation. She referred to page 2, para4.1 of the assessment order, wherein the letter of the assessee was extracted by the assessing officer. Referring to the order of the CIT (A), she submitted that mens rea was taken as one of the criteria for granting relief. She submitted that such criteria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the interest of avoiding litigation, the assessee has agreed to defer the claim to the next year. 5. In response, the learned Department Representative emphasized the point that the assessee agreed that the claim was wrong and argued that in such circumstances, penalty has to be levied. She emphasized the fact that only certain cases has selected for scrutiny and in those circumstances, if a return is not selected for scrutiny, then the wrong claim cannot be detected. She relied on the following cases, K.L.Swamy Vs. Commissioner of Income Tax and Another.239 ITR 386,Bhairav Lal Verma Vs. Union of India Anr. 230 ITR 855, for the preposition that voluntarily surrendered, does not give immunity to the assessee from penalty. 6. Ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the case of CIT Vs. Zoom Communication P.Ltd.327 ITR 510, the Hon ble Delhi High Court was dealing with an issue where the claim made by assessee had no justification. This case does not apply to the facts of the impugned case as the claim cannot be held as not justified. 9. Coming to the decision in the case of CIT Vs. Gurbachan Lal 250 ITR 157, the proposition laid down by the jurisdictional High Court is that the initial burden of discharging the onus is on the assessee in cases where penalty is levied u/s 271 (1) (c). 10. In the case of Bhairav Lal Verma Vs. Union of India 230 ITR 855, the full bench of the Allahabad High Court held that full and true disclosure of income made voluntarily and in good faith by the assessee is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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