TMI Blog2011 (5) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... tance of an assessee and is directed against order dated 18th November, 2009 passed by the Income Tax Appellate Tribunal C Bench, Kolkata in ITA No.2039/Kol/2008 for the Assessment Year 2003-04 thereby dismissing an appeal preferred by the assessee against an order of the Commission of Income Tax (Appeals), Kolkata dated 21st October, 2008 confirming penalty under Section 271(1)(c) of the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the assessment the assessee on the basis of report given by the auditor in the Tax Audit Report claimed depreciation from the house property, although the same was a rented one. Subsequently, when such mistake was detected, the assessee filed a revised return rectifying such mistake in response to a notice under Section 148/147 of the Income Tax Act. However, the Assessing Officer drew up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o produce evidence in support of claim of depreciation it refused to produce such document. It appears that this is a case where claim of depreciation, which is a mixed question of law and fact, was made on the basis of auditor s report which was not found to be tenable because of the fact that the house property was a tenanted one. It is not a case where the assessee has wrongly disclosed that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming the order of imposition of penalty which is not in conformity with the view taken by the Supreme Court in the abovementioned matter. We, thus, set aside the order passed by the Tribunal below by answering the formulated question in the affirmative and against the Revenue by quashing the order of penalty. We, thus, allow the appeal. In view of our order in the appeal that it is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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