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2015 (9) TMI 651 - ITAT KOLKATA

2015 (9) TMI 651 - ITAT KOLKATA - TMI - Levy of penalty u/s 271(1)(c) - disallowance of claim of depreciation on land - assessee submitted that he had computed and claimed the depreciation on land due to misconception and confessed the mistake at the time of hearing by submitting a fresh depreciation chart - CIT(A) deleted penalty levy - Held that:- Order of the Ld. CIT(A) finds support from the order of the Tribunal passed in the case of the assessee itself in the immediately preceding assessme .....

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cts Pvt. Ltd.(2010 (3) TMI 80 - SUPREME COURT) wherein held a mere making of an claim not sustainable in law, would not invite penalty. - Decided in favour of assessee. - I.T.A. No.2039/Kol/2010 - Dated:- 26-8-2015 - Shri N.S.Saini and Shri Mahavir Singh, JJ. For The Department : Shri K.N.Jana, Sr.DR For The Assessee : None ORDER Per Shri N.S.Saini, A.M. This appeal filed by the Revenue and the Cross Objection filed by the Assessee are against the order of the CIT(A)-III, Kolkata dated 30.08.201 .....

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ch depreciation on land and also filed reconciliation chart on depreciation of land and stated that depreciation on land for assessment year 2003-04 was already taxed and for the assessment year 2004-05 also, disallowance of depreciation on land has been completed. Therefore, the AO added ₹ 54,92,794/- to the income of the assessee by disallowing the claim of depreciation on land. 4. Thereafter, the AO issued notice under section 271(1)(c) of the Act and required the assessee to show cause .....

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Being not satisfied with the above explanation of the assessee, the AO held that the assessee has deliberately furnished inaccurate particulars and/or concealed income to reduce tax liability. Accordingly, the AO levied penalty under section 271(1)(c) @100% of the tax sought to be evaded amounting to ₹ 18,77,731/-. 7. Being aggrieved against the said order of the AO, the assessee filed appeal before the ld. CIT(A). 8. The assessee submitted that the issue of levy of penalty for disallowing .....

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t was brought to my notice that, as far as first two additions are concerned, on identical issues, the penalty imposed for A/Yr. 05-06 has been cancelled by the Ld. CIT(A):C-III:Kol and such cancellation was upheld by the Hon ble ITAT. I have gone through the copies of both these orders, the details of which are given below: (1) Appeal No.71/CC-XXIII/CIT(A)/C-III/08-09 dated 08.12.2008; (2) ITA No.221/Kol/09 A.Yr. 05-06. 7. Further going through these orders I am of the opinion that the issues a .....

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l the details of assets owned including land in Schedule D- Details fixed assets as per Companies Act, 1956 as on 31.03.2005. The appellant had mistakenly claimed depreciation on land amounting to ₹ 41,63,495/- in the return of income. The appellant had realized the mistake and in the course of assessment proceedings rectified the mistake and withdrew the erroneous claim. The AO had also taken the revised claim of depreciation made by the appellant for all the assets and completed the asse .....

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ion chart. The penalty levied, therefore, is not in accordance with law. The Hon ble ITAT after going through all the facts, upheld the order of the Ld. CIT(A):C-III:Kol. 8. Respectfully following the orders of the Hon ble Tribunal and my predecessor, I hold that the imposition of penalty on the aforementioned 2 additions is not in accordance with the law. 9. The ld. D.R. supported the order of the AO. In support of the same, he placed reliance on the decision of the Delhi High Court in the case .....

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o show that the property was used in the business of the assessee. The ld. D.R. also placed reliance on the decision of the Hon ble Delhi High Court in the case of CIT-vs- Zoom Communication (P) Ltd. [2010] 191 Taxman 179 (Delhi) where it was held that penalty under section 271(1)(c) of the Act was imposable on account of concealment of income by the assessee where no evidence in the form of advice received from his Auditor could be produced by the assessee for claiming deduction of the amount o .....

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