TMI Blog2004 (6) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the returned income of ₹ 1,12,24,312. Hence, the Assessing Officer initiated the proceedings under section 271(1)(c) of the Act. Accordingly, a show-cause notice was issued as to why the penalty under section 271(1)(c) of the Act be not imposed. The assessee submitted that the claim of depreciation amounting to ₹ 22,98,484 on building, 53, Friends Colony, New Delhi was withdrawn vide letter dated 12-8-1998. It further stated that the income was revised to ₹ 1,35,22,796 by withdrawing the claim of depreciation of ₹ 22,84,484. Thus, the penalty under section 271(1)(c) would not be leviable. However, the explanation of the assessee did not find favour with the Assessing Officer. He observed that the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty either in terms of law or a fact. The assessee has become the owner of the property of 53, Friends Colony, New Delhi during the assessing year 1995-96. The assessee was carrying on business for a long time business. The building was purchased for being used of its office. Therefore, even if it is presumed that building so purchased was not effectively utilized for the purpose of business, still in terms of various judicial decision wherein it has been held that even passive user of an asset in a business qualifies for the grant of depreciation, it must be held that the assessee was entitled for the grant of depreciation in respect of the building 53, Friends Colony, New Delhi. There is no doubt that the assessee, during the year own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. The Ld. DR has submitted, that the CIT(A) has failed to take note that in the immediately preceding assessment year, i.e., assessment year 1995-96, the Assessing Officer had totally demolished the claim of the assessee that the impugned building on which the depreciation was claimed was never used for the purposes of business. It is for this reason. The assessee-company settled the dispute relating to the claim for depreciation on the impugned building under the Kar Vivad Samadhan Scheme for the assessing year 1995-96. Thus, by making a false claim in the return of income for depreciation, the assessee has concealed the particulars of his income and/or furnished inaccurate particulars of such transactions. Thus, he has supported t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accurate particulars getting detected in the course of the assessment proceedings for the year under consideration. The assessee-company voluntarily and in good faith, withdrew its claim for depreciation in order to avoid litigation. The Ld. counsel has further submitted that there is no finding of the lower authorities that the explanation offered was false or the explanation had not been substantiated by the assessee or the explanation offered by the assessee was not bona fide. In this regard, a reliance has been made to the decision in the case of CIT v. P. Govinda Swamy reported in 263 ITR 509 (Mad.). 6. The Ld. Counsel for the assessee has further submitted that the assessment order would show that the Assessing Officer has not reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of Delhi High Court in the case of Oammar-Ud-Din Sons (supra) is referred to wherein it has been held thus:- the onus on an assessee imposed by section 271(1)(c) and the Explanation thereto is to prove a negative and all that is possible for him to do is to indicate certain circumstances on the basis of which the absence of fraud or gross or wilful neglect can be reasonably inferred. Conduct subsequent to the filing of the return is very relevant to the issue. The obligation of filing a return should be discharged scrupulously and sincerely but at the same time before the assessee is mulcted with a penalty, all the circumstances and developments till the assessment is completed should be taken into account and if the collective ..... X X X X Extracts X X X X X X X X Extracts X X X X
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