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TMI Blog2013 (4) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 143(3) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for the assessment year 2006-07, vide his order dated November 5, 2008. Penalty in dispute was levied by the Assistant Commissioner of Income-tax, Circle-9, Kolkata, under section 271(1)(c) of the Act, vide his order dated May 29, 2009. 2. The only issue in this appeal of the Revenue is against the order of the Commissioner of Income-tax (Appeals) deleting the penalty levied under section 271(1)(c) of the Act by the Assessing Officer on the claim of depreciation. For this, the Revenue has raised following three grounds : "1. That on the facts and in the circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer. The Assessing Officer while completing assessment made disallowance of depreciation at Rs. 3,80,692 on the ground that machinery were not put to use during the year. The Assessing Officer further allowed additional depreciation on xerox machine and also payment of provident fund under section 43B of the Act. The Assessing Officer initiated penalty proceedings and also imposed penalty relying on the decision of the hon'ble Supreme Court in the case of Union of India v. Dharamendra Textile Processors [2008] 306 ITR 277 (SC). Before the lower authorities including the Assessing Officer during the course of assessment proceedings, during penalty proceedings and even before the Commissioner of Income- tax (Appeals) during appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the return cannot amount to the inaccurate particulars. It was tried to be suggested that section 14A of the Act specifically excluded the deductions in respect of the expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act. It was further pointed out that the dividends from the shares did not form the part of the total income. It was, therefore, reiterated before us that the Assessing Officer had correctly reached the conclusion that since the assessee had claimed excessive deductions knowi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings under the Tamil Nadu General Sales Tax Act, the court had found that the authorities below had found that there were some incorrect statements made in the return. However, the said transactions were reflected in the accounts of the assessee. This court, therefore, observed (page 251) : 'So far as the question of penalty is concerned the items which were not included in the turnover were found incorporated in the appellant's account books. Where certain items which are not included in the turnover are disclosed in the dealer's own account books and the assessing authorities includes these items in the dealer's turnover disallowing the exemption, penalty cannot be imposed. The penalty levied stands set aside.' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Calcutta High Court in the case of Usha Martin Ventures Ltd. In the facts of the present case there is no doubt the claim of depreciation by the assessee was wrong but the assessee has filed complete particulars qua these assets and also in the claim of depreciation in audit report and in the return of income and nothing was concealed from the Department. In such circumstances, respectfully following the decision in the case of Usha Martin Ventures Ltd., we are of the view that penalty levied by the Assessing Officer has rightly been deleted by the Commissioner of Income-tax (Appeals). We confirm the same. The appeal of the Revenue is dismissed. 4. In the result, the appeal of the Revenue is dismissed. 5. The order pronounced in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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