TMI Blog2014 (9) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... facts. As also observed that claiming double depreciation was a reporting error committed by the tax consultant whereas learned counsel for the assessee submitted before us that it was not an error on the part of the tax consultant but it was a bona fide error on the part of the assessee-company. There are many other aspects which need to be considered and appreciated properly before appreciating as to whether it can be termed as bona fide error or it amounts to furnishing of inaccurate particulars of income. Since the learned Commissioner of Income-tax (Appeals) prima facie committed an error in basing his conclusions on wrong assumption of facts, we refrain from making any observation on the other aspects of the case. With these obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o consideration the depreciation, the net profit/loss was shown for Income-tax purposes. It is also noticed that the assessee deducted ₹ 4.21 crores as depreciation on windmill as per the Income-tax Act but depreciation charged as per the Companies Act was not added back in the final computation of income. It deserves to be noticed that though the e-return was filed on September 29, 2008, the return was processed under section 143(1) of the Act, statutory notice under section 143(2) was issued on August 5, 2009 after selecting the case for scrutiny, the assessee never bothered to verify as to what is the amount of depreciation claimed in the return of income. In other words, double deduction claimed was not looked into. Only when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that it is not a case of furnishing inaccurate particulars of income. 5. The Assessing Officer observed that the assessee made a conscious attempt to evade taxes by furnishing inaccurate particulars of income and hence provisions of section 271(1)(c) read with Explanation 1 thereto are applicable to the instant case. In this regard he observed that Explanation 1 to section 271(1)(c) automatically comes into operation in such cases and the onus to establish that it was not a case of furnishing inaccurate particulars, and not concealed income, is on the assessee. The assessee- company is covered by the provisions of section 44AB of the Act and has got its accounts audited by a chartered accountant. The depreciation in respect of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer under section 154 of the Act was also placed before the learned Commissioner of Income-tax (Appeals) to submit that the assessee was granted relief to the extent of ₹ 83,79,859 and hence penalty cannot be levied at least in respect of the said amount. It was thus contended that the effective disallowance on depreciation of windmill works out to ₹ 86,95,526. It was contended that it was an unintended, bona fide and inadvertent mistake which had crept in while filing the return of income and it cannot be treated to be with an intention to defraud the Revenue. To buttress the contention it was stated that the assessee had not only added back the depreciation on other assets as per the Companies Act, 1956 aggregating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mistake of adding less amount towards depreciation on windmill undertaking as per the Companies Act, 1956 to the extent of ₹ 86,95,526 was just a reporting error com mitted by the tax consultant while computing the taxable income. 8. He further observed that depreciation on windmill undertaking is worked out under the Companies Act as well as under the Income-tax Act which is evident from Schedule V, Annexure B of the tax audit report. He assumed that the disallowance is made in the financial statement of the assessee on this issue and therefore mere short addition on depreciation on windmill undertaking as per the Companies Act, 1956 has all the hallmarks of a human bona fide clerical mistake and cannot lead to a conclusion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee did not choose to revise the return. By 2010 the assessee must have filed returns for subsequent years but it claims that it has not noticed this so called defect. Though the learned Commissioner of Income-tax (Appeals) recorded in paragraph 3.2.1 that the assessee voluntarily informed the Assessing Officer about the inadvertent mistake and filed a revised return the fact remains that it cannot be considered as a revised return. It was only upon examination of the return and the Assessing Officer having called upon the assessee to explain the discrepancy, the assessee came forward to accept the default on its part. Thus, it could be noticed that the order passed by the learned Commissioner of Income-tax (Appeals) was not only crypt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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