TMI Blog2016 (12) TMI 1416X X X X Extracts X X X X X X X X Extracts X X X X ..... etter dated 8.8.2014 addressed to the AO and furnished to the AO during the course of assessment proceedings, wherein at Point No. 14 it has been clearly mentioned that freight charges on tanker have been received from Anil & Company (which clearly shows that the tankers have been given on hire). Thus find that it is clearly established that the tankers have been given on rent and the allowable depreciation rate under these circumstances is @30% as against 15% allowed by the AO and 50% claimed by the assessee in his return of income. Thus the AO was directed to recomputed the depreciation on both the tankers @30%, which establishes that assessee has not furnished inaccurate particulars of its income and is not liable for penalty u/s 271(1)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant had claimed the higher rate of depreciation which was not accepted by the AO, that by itself would not attract the penalty u/s. 271(1)(c). 5. The Ld. CIT(A) has erred in not taking the cognizance of rectification application u/s. 154 which was also within its ambit and also rejecting the plea of the appellant during the course of penalty proceedings that too by recording incorrect facts and findings. 6. The Ld. CIT(A) was not justified in considering the calculation of excess deprecation mistakenly by the appellant as intentional as the claim of higher depreciation was difference of opinion. 7. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epreciation claimed by the assessee, which is the basis of levy of penalty. He further stated that assessee has claimed depreciation on tanker at ₹ 5,91,773/- @ 50%, however, the AO has allowed the depreciation @15%. He further assessee aggrieved with the depreciation @15% filed an application dated 8.6.2015 u/s. 154 of the I.T. Act stating therein that depreciation @30% be allowed to the assessee, which was rejected by the AO vide his order dated 15.6.2015. He further stated against the order dated 15.6.2015, assessee preferred appeal before the Ld. CIT(A) who vide his order dated 9.7.2015 directed the AO to recomputed the depreciation on both the tankers @ 30%, hence, he stated that the penalty imposed by the AO is not sustainable i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purview of section 154. The appellant is also furnished letter dated 8.8.2014 addressed to the AO and furnished to the AO during the course of assessment proceedings, wherein at Point No. 14 it has been clearly mentioned that freight charges on tanker have been received from Anil Company (which clearly shows that the tankers have been given on hire). Thus I find that it is clearly established that the tankers have been given on rent and the allowable depreciation rate under these circumstances is @30% as against 15% allowed by the AO and 50% claimed by the appellant in his return of income. Thus the AO is directed to recomputed the depreciation on both the tankers @30%. Thus the appeal of the appellant is allowed. 7.1 After per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from the decision of the Hon'ble Apex Court in the case of CIT vs. Reliance Petroproducts Pvt. Ltd. (2010) 322 ITR-158 (SC) wherein the Hon'ble Supreme Court has held that 'where there is no findings that any details supplied by the assessee in its return are found to be incorrect or erroneous or false, there is no question of inviting the penalty u/sec. 271(1)(c) of the Act. A mere making a claim, which is not sustainable in law, by itself, will not amount of furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the return cannot amount to furnishing a inaccurate particulars of income. As the assessee has furnished all the details of its expenditure as well as income in its return, which d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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