TMI Blog2016 (7) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that the penalty required to be imposed upon the assessee. The assessee nowhere rendered an explanation that what has operated in his mind while filing the return for claiming depreciation at the rate of 100%. The provision of allowing 100% depreciation on the items valued less than ₹ 5,000/- has been omitted from the statute book by Finance Act, 1995 w.ef. 1.4.1996. Thus, there were two fallacies, viz. (i) in spite of non-availability of depreciation by virtue of amendment carried out in the Act, the assessee had made out a claim, and (ii) the AO has demonstrated that its claim was not factually admissible. The cases laws referred by the assessee are not applicable on the given facts of the case. Therefore, it is of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing balance as well as of ₹ 6,74,067/- on the addition made during first half. The total claim is made at an amount of ₹ 9,69,102/- and depreciation is claimed @100%. On going through the bills for addition, made during first half of the year, it is seen that the same is in respect of M.S. Angles and Bars, HR Sheets Plates as well as labour charges. There is also a JV entry towards loan account in the said addition of ₹ 2,16,002/- in the month of August 2006. This means that originally the item was purchased by P.C. Snehal Construction Co. and not the assessee. The items are above worth ₹ 5,000/-. The assessee appears to have also claimed depreciation even on labour charges, which is ₹ 86514/- and ₹ 272 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n pleaded by the assessee that its claim for grant of deprecation at the rate of 100% was not accepted by the AO, does not mean that the assessee deserves to be visited with penalty. In support of his contentions, he relied upon the judgment of the Hon ble Supreme Court in the case of CIT Vs. Reliance Petro Products, 322 ITR 158 (SC). According to the ld.counsel for the assessee it was only a difference of opinion between him and the AO. The ld.counsel for the assessee, thereafter relied upon the order of the ITAT in the case of Vinay Balwantrai Agarwal Vs. ITO, ITA No.231/Ahd/2013. He placed on record copy of the order. The ld.counsel for the assessee further relied upon the judgment of the Hon ble Gujarat High Court in the case of Mitsu I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the total income of any person under this Act, (A) Such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Commissioner (Appeals) or the CIT to be false, or (B) such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him, then, the amount added or disallowed in computing the total income or such person as a result thereof shall, for the purposes of Clause (c) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed. 9. A bare peru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o prove that such explanation is bona fide and that the assessee had disclosed all the facts relating to the same and material to the computation of the total income. Under first situation, the deeming fiction would come to play if the assessee failed to give any explanation with respect to any fact material to the computation of total income or by action of the Assessing Officer or the Learned CIT(Appeals) by giving a categorical finding to the effect that explanation given by the assessee is false. In the second situation, the deeming fiction would come to play by the failure of the assessee to substantiate his explanation in respect of any fact material to the computation of total income and in addition to this the assessee is not able t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the items valued less than ₹ 5,000/- has been omitted from the statute book by Finance Act, 1995 w.ef. 1.4.1996. Thus, there were two fallacies, viz. (i) in spite of non-availability of depreciation by virtue of amendment carried out in the Act, the assessee had made out a claim, and (ii) the AO has demonstrated that its claim was not factually admissible. The cases laws referred by the assessee are not applicable on the given facts of the case. Therefore, I am of the view that the ld.CIT(A) has rightly confirmed penalty upon the assessee, and the impugned order on this issue is confirmed. 7. In the result, the appeal of the assessee is dismissed. Order pronounced in the Court on 13th July, 2016 at Ahmedabad. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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