TMI Blog2012 (11) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... vidend from the co-operative bank was also treated as normal dividend. This also seems to be a case of bona fide belief and in such circumstances penalty is not attracted - when assessee is making some claim on bona fide basis or under the wrong advise of the counsel then penalty cannot be levied - assessee’s appeal is allowed. - I.T.A.NO.12/Mum/2010 - - - Dated:- 20-1-2012 - SHRI T.R.SOOD SHRI VIJALY PAL RAO, JJ. Appellant by : Shri Arvind Sonde. Respondent by : Shri Pavan Ved. ORDER Per T.R.SOOD, AM: In this appeal various grounds have been raised by the assessee, but the only dispute is regarding levy of penalty u/s.271(1)(c). 2. After hearing both the parties, we find that during the assessment proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , AO did not find force in this submission and after discussing some case laws confirmed the penalty. 3. Before the ld. CIT(A) similar submissions were reiterated. However, ld. CIT(A) also did not find force in these submissions and confirmed the action of the AO. 4. Before us, Ld. Counsel of the assessee referred to page-1 of the paper book and pointed out that depreciation of Rs.4,04,63,485/- was claimed in the computation prepared under the normal provisions of the Act during the year. However, the income was computed under the MAT provisions as per page-2 of the paper book. He then referred to page 19 which is a copy of the computation for A.Y 2005-06 wherein normal depreciation amounting to Rs.4,04,63,485/- was claimed and in that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses: a) CIT vs. Deepak Kumar 232 CTR (P H) 78 b) CIT vs. Amar Nath c) CIT vs. Sidhartha Enterprises. 6. On the other hand, Ld. DR relied on the orders of the AO. 7. After considering the rival submissions, we find force in the submissions of the Ld. Counsel of the assessee that depreciation in earlier was also claimed but since final income was returned under MAT provisions, therefore, assessee may be under an erroneous belief that such depreciation was not allowed in the earlier year. Further, the auditor of the company had shown in the report that such depreciation was brought forward. Therefore, assessee following this opinion, filed a wrong return. In fact, assessee had revised the computation during the assessment proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rically admitted that he had advised the assessee to claim deduction under section 10(36) in respect of the shares sold during the financial year 2003-04. The revenue had not rebutted the said affidavit at any stage. Thus, the assessee had acted upon the advice of his counsel In the case of Manoj Ahujav. JAC[1984]JSOITR 696, it has been held that no litigant should ordinarily suffer for the mistake of his counsel Further, since the assessee had furnished all the details relating to the capital gains along with return of income, it could not be said that the assessee 1zad concealed anything from the revenue. Therefore, that might be a good case for making addition against the assessee since he had made a wrong claim. However, that addition, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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