TMI Blog2017 (9) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... (1)(c) of the Act. We also note that the Ld. CIT-(A) following the decision of the Hon’ble Delhi High Court in the case of Madhushree Gupta Vs. CIT (2009 (7) TMI 38 - DELHI HIGH COURT) has already rejected the argument of not mentioning in the impugned penalty order as to whether the penalty was levied on account of concealment or on account of furnishing of inaccurate particulars. We agree with the finding of the Ld. CIT-(A) that the assessee being a part of a large industry group having the assistance of lawyers, professionals and chartered accountants, cannot be allowed to shift the burden on the accountant, who being an employee of the assessee was not having any choice except filing affidavit. The Ld. CIT- (A) has also pointed out that it is not the case of the assessee that income from house property was declared for first-time in the year under consideration. The Ld. counsel has failed to rebut any of the above finding of the Ld. CIT-(A). The claim of depreciation and repair & maintenance expenses made in return of income is a clear case of false claim by the assessee and no bonafide explanation has been given by the assessee. - Decided against assessee. - ITA No. 5722/D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record. 9. That the submissions filed have not been considered judiciously. The impugned order is passed without any application of judicious mind and without considering the fact that as per various judicial decisions, no penalty should be levied in this case. 10. That the various observations and allegations made against the assessee in the impugned order are illegal, bad in law and contrary to facts on record. 11. The assessee craves leave to add, alter, amend, delete, rescind, forgo or withdraw any of the Grounds of Appeal as may be considered necessary either before or during the course of hearing of the grounds of appeal by the Hon ble ITAT proceedings in the interest of natural justice. 12. The above grounds are without prejudice to each other. 2. Briefly stated facts of the case are that the assessee filed return of income on 30/09/2009 declaring income of ₹ 4,47,439/-, which was selected for scrutiny and assessment was completed under section 143(3) of the Act on 06/12/2011. In the assessment completed, the Assessing Officer held that rental income from house properties was declared by the assessee under the head Income from hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat this objection of the appellant is hyper technical and it tantamount to hair splitting and further it don't show as to what prejudice is caused to them because of aforesaid aspect. Further, it is a cardinal principle of taxation that technicalities cannot shake the substance of the matter, i.e. in absentaia of bonafides assessee's aforesaid plea, in my view devoid of legally substantive merits. Hon'ble Delhi High Court in the case of Madhushre Gupta vs. CIT (317 ITR 107)1 while interpretation Section 271(l)(b) has held that if AO has given his mind in the body of assessment order while initiating the penalty proceedings than nothing else is required. Thus from the above, the appellant objection in this regard deserves to be jettisoned. 4.2 The appellant has taken another plea, that it is not a case of 'false claim' but a case of a 'bonafide mistake' and that too because of the fault of the accountant. In the fact of the present case it is seen that the appellant's case falls within the provisions of subclause B of Explanation 1 of section 271(1)(c), therefore, one has to examine as to whether the appellant is able to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en taken up for scrutiny, the appellant would have got away with the excess claim which was patently wrong. Hence, appellant's plea is not admissible that it was a bonafide mistake of the accountant. Here, it is pertinent to note the following observation of the jurisdictional Delhi High Court in the case of CIT Vs Zoom Communication Pvt. Ltd. (201C) (327 ITR 510)(Del) where the Court observed that: . 20. The Court cannot overlook the fact that only a small percentage of the Income Tax Returns are picked up for scrutiny. If the assessee makes a claim which is not only incorrect in law but is also wholly without any basis and the explanation furnished by him for making such a claim is not found to be bonafide, it would be difficult to say that he would still not be liable to penalty under Section 271(l)(c) of the Act. If we take the view that a claim which is wholly untenable in law and has absolutely no foundation on which it could be made, the assessee would not be liable to imposition of penalty, even if he was not acting bonafide while making a claim of this nature, that would give a licence to unscrupulous assessees to make wholly untenable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 05/05/2017; 2. M/s MG Contactors Private Limited Vs. DCIT in ITA No. 7034 to 7038/Del/2014; 3. Yum ! Restaurants (I) Private Limited Vs. ITO in ITA No. 894 to 896/Del/2013 5. On the other hand, Ld. Sr. DR submitted that in para-2 of the impugned penalty order the Assessing Officer has duly narrated the specific charges of wrong claim of depreciation and repair and maintenance expenses on the properties given on rent, despite deduction under section 24(1) of the Act claimed under the income from house property. The Ld. Sr. DR further submitted that in the assessment order also the Assessing Officer clearly mentioned the specific charges. He further submitted that before the Tribunal, the assessee did not file any copy of the notice under section 274 of the Act, in support of the reliance placed on the decision cited by the Ld. Counsel. According to the Ld. Sr. DR, the Ld. CIT-(A) has already considered all the pleas of the assessee and rejected. He, accordingly, submitted that the order of the ld. CIT-(A) might be upheld. 6. We have heard the rival submissions and perused the relevant material on record. In the decision of the Hon ble Karnataka High Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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