TMI Blog2006 (12) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Hon'ble Rajasthan High Court in the case of Badri Prasad Om Prakash v. CIT [1987] 163 ITR 440 relied upon by the assessing Officer cannot be ground for penalizing the assessee on the strength of the revised return, though in such circumstances the Supreme Court has upheld the penalty u/s. 271(1)(c) in the case of G.C.Agrawal v. CIT reported in [1990] 186 ITR 571? (2) Whether, on the facts and in the circumstances of the case and that the assessee is in habit of making false claim of deduction on the machinery which was not put to use and in absence of any cogent reason for revising the return, where as the Supreme Court's decision in the case of G.C.Agrawal vs. CIT [1990] 186 ITR 571 on the similar circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particulars is not sufficient to attract the penalty provisions contained in Section 271(1)(c) of the I.T. Act, 1961. In order that penalty may be impose, there should be conscious concealment of particulars or inaccurate particulars must have been furnished deliberately by the assessee. The entirety of the circumstances must be taken into consideration and the conduct of the assessee from the inception to the conclusion of the assessment proceedings must be viewed in order to find out whether a criminal intention of conscious concealment of true particulars of income or deliberate furnishing of inaccurate particulars by the assessee has been established. Where a revised return is filed, the crux of the matter is that if after examining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r less similar and identical to the facts existing in the present case and therefore, the ratio and principle laid down by the Rajasthan High Court in the case of J.P.Sharma and Sons v. CIT [1985] 151 ITR 333 clearly go to support the assessee's case and the order passed by the A/o. on going through the contents of the assessment order as well as the contents of the penalty order, we are unable to find out mens rea or guilty mind or intention on the part of the assessee in furnishing of inaccurate particulars relating to claim of depreciation and investment allowance and also in respect of interest which accrued on the FDRs. The assessee had very clearly submitted in its reply dtd.5.4.1986 which we have extracted elsewhere above tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Electricity Board, the Dozer D3 has also inspected on 13.11.1982 and a certificate to that effect has also been given by the Engineer-in-Charge, Gujarat Electricity Board, which can be found at pages 26 and 27 of the supplementary paper book filed on 10.1.1995. We also find that the assessee also purchase diesel for Dozer D3, the details which have been given placed from pages 20 to 25 of the supplementary paper book. These related evidences placed in the supplementary paper-book filed on 10.1.1995 amply go to establish that the claim for depreciation and investment allowance made in the original return was not a false claim but it was a bonafide and right claim and if contested could have been allowed by the Revenue authorities. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from the orders, which are placed at pages 1 2 of the original paper book filed at the time of hearing. Thus, taking all the cumulative facts and circumstances into consideration, the only conclusion which can be arrived at is that the assessee is not liable or exigible for any penalty in accordance with the provisions of Section 271(1)(c) of the Act more so far the charge of furnishing inaccurate particulars in relation to the depreciation and investment allowance claim as also in respect of the accrued interest FDR. We, therefore, without any hesitation uphold the impugned order of the A/O in cancelling the penalty levied by the A.O. u/s 271(1)(c) of the Act." 4 There is no dispute on the facts that the assessee has claimed deprec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
