TMI Blog2016 (8) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... R.UDHWANI, JJ. FOR THE APPELLANT : MRS SWATI SOPARKAR, ADVOCATE FOR THE OPPONENT : MRS MAUNA M BHATT, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of this appeal, the assessee has challenged the order passed by the ITAT in ITA No.4232/Ahd/2007 for assessment year 1998-99 whereby the tribunal has reversed the findings of the CIT (A) and confirmed the order of AO. 2. The short facts of the case are that the assessee has filed its return of income on 30/11/1998 declaring the total income at ₹ 2,70,35,810/- and the order under Section 143 (3) of the IT Act came to be passed determining the total income at ₹ 3,03,37,294/- and made following disallowance of ₹ 17,54,739/- in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .4 and 7 to the Balance sheet and they were also attached with the return of income which reads as under: 4. Claim of Depreciation: (a) The computation of depreciation is claimed on the basis of return of income filed in earlier assessment years. The claim of depreciation on technical knowhow disallowed in Assessment Year 1989-90 and subsequent assessment year has not been considered as the same is being contested in appeal before Income Tax Appellate Tribunal. 5. The deduction available under section 35AB is calculated as under: [a] In respect of technical knownow acquired in 93-94 (Rosernmudn A.G.) 1st Installment 1/5th ₹ 1238333/- (Rs.1486000/-Rs. 247667) 2,47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 'A' Bench's order dated 9-11-2004 for A.Y. 1989-90 in the case of the appellant in ITA Nao.2194/Ahd/2001 that penalty levied u/s. 271(1)(c) for A.Y. 1989-90 was deleted by the Hon'ble Tribunal holding that the appellant had not concealed the particulars of its income or filed inaccurate particulars of income consciously and deliberately and has disclosed everything before the Assessing Officer in respect of the claim of technical knowho and as facts in this year are similar to A.Y. 1989-90 and as the penalty has been deleted by the Tribunal for A.Y. 1989-90, for the said reasons in respect of technical knowhow, I hold that it is not a fit case for levy of concealment penalty in respect of this addition. 2.3 In respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of inaccurate particulars and the appellant had disclosed everything before the Assessing Officer. Hence, I do not find it to be fit case for levy of concealment penalty in respect of the disallowance of interest. Accordingly, the penalty levied is cancelled in respect of the claim of interest. Further I find that there was no proper satisfaction recored by the Assessing Officer for initiation of penalty. The penalty has been initiated only at the end of the assessment order which was not proper satisfaction for initiation of penalty. The Assessing Officer has not given any finding in the assessment order whether the penalty is initiated for concealment of income or filing inaccurate particulars of income. In view of the above facts, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he claim made though not found acceptable was bona fide to conclude that no penalty be visited on assessee. 4.5 By making aforesaid submissions, learned Senior Counsel has contended that the appeal may be allowed and the issue may be answered in favour of the assessee. 5. On the other hand, learned Senior Standing Counsel Mr.Bhatt has contended that in spite of the fact that the matter which is claiming depreciation for deduction was rejected upto the Apex Court and the tax was not paid deliberately and it will amount to concealment and therefore the penalty imposed by the authorities below is just and proper. He has contended that the order of the Tribunal is just and proper and this Court may not interfere with the same. 6. Havin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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