TMI Blog2009 (9) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed by the AO. CIT (A) deleted penalty - HELD THAT:- The assessee cannot be said to have either disclosed inaccurate particulars or concealed any particulars of income. Firstly, it is to be appreciated that there is no allegation on the assessee of not disclosing the complete particulars. In fact, the return of income of the assessee was accompanied by a schedule of fixed assets which inter alia showed additions made prior to 30th Sept., 2001 and post 30th Sept., 2001. Moreover, the account books of the assessee have been subject to tax audit u/s. 44AB by a firm of chartered accountants, a copy of which has been placed on record. Even in such statement, the depreciation claim has been calculated by applying the normal rate of depreci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue is dismissed. - G. S. PANNU (A.M.) and JOGINDER SINGH (J.M.) For the Appellant : Vivek Aggarwal For the Respondent : Rajiv Sharma ORDER This appeal by the Revenue is directed against the order of the CIT(A) dt. 7th Nov., 2008 pertaining to the asst. yr. 2002-03. In this appeal, the only issue agitated by the Revenue is against the decision of the CIT(A) in deleting the penalty imposed by the AO under s. 271(1)(c) of the IT Act, 1961 (in short 'the Act') amounting to ₹ 4,15,946. 2. The brief facts are that the assessee is a co-operative sugar mill which filed its return of income for the asst. yr. 2002-03 on 29th Oct., 2002 declaring an income of ₹ 42,868. The assessment in this case was com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while calculating the depreciation, the rate was wrongly applied @ 100 per cent of the allowable depreciation, whereas, only 50 per cent of the allowable depreciation for the whole year was to be allowed because the assets were used for less than 6 months and this mistake is clearly a bona fide mistake as is born out from the facts, therefore no penalty is leviable, hence the penalty is deleted. 4. Against such deletion, the Revenue is in appeal before us. 5. Before us, the learned Departmental Representative appearing for the Revenue contended that the assessee had claimed depreciation wrongly in the return of income and therefore, the AO was justified in inferring that the assessee had filed inaccurate particulars of income which c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been applied. When during the course of assessment proceedings, the assessee was asked to verify the depreciation claimed, the assessee found the mistake and corrected the claim. In these circumstances, clearly it is a bona fide mistake in as much as the assessee depended on the audited statements while filing the return of income. In support, learned counsel relied upon the following decisions : (i) Asstt. CIT vs. Rupesh Bholidas Patel (2008) 16 DTR (Ahd)369; (ii) Bhadra Advancing (P) Ltd. vs. Asstt. CIT (2008) 11 DTR (Kar)149. 7. We have considered the rival submissions carefully. Whether the assessee has concealed the income or furnished inaccurate particulars of income in the context of s. 271(1)(c) of the Act has to be deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over, the account books of the assessee have been subject to tax audit under s. 44AB of the Act by a firm of chartered accountants, a copy of which has been placed on record. Even in such statement, the depreciation claim has been calculated by applying the normal rate of depreciation on the entire additions. Secondly, having regard to the fact that the respondent assessee is a co-operative sugar mill which is manned by public officers, the bona fides of the same are prima facie not in doubt. Further, the difference in the claim has arisen on account of a mere wrong application of depreciation rate. It is not a case where such mistake has been found after a long drawn investigation or enquiry so as to establish that any concealed income has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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