TMI Blog2017 (9) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... ock concept of depreciation. There was a separate line item indicated loss on fixed asset of ₹ 1,69,429/- in the Income & Expenditure Account which was omitted to be added back in the computation. The error went un-noticed by the tax auditor as well as the same was overlooked while certifying the Income & Expenditure Account and by the tax consultant while preparing the computation of income. Hence, there was no intention to avoid payment of taxes. The quantum of assessee tax payments clearly indicates the assessee intention to be tax compliant. Moreover, the assessee with a returned income of 34.94 crores and tax payment of more than ₹ 10.85 crores which does not show any mala fide intention to conceal an income of ₹ 13.09 lacs (not even 0.4% of returned income) with an intention of evading tax of ₹ 4 lacs (not even 0.4% of taxes paid). Therefore, the allegation that assessee was having any mala fide intention to conceal his income or for furnishing inaccurate particulars of income is not correct, hence, the penalty in dispute needs to be deleted. - Decided in favour of assessee. - I.T.A. No. 100/Del/2015 - - - Dated:- 21-9-2017 - SHRI H. S. SIDHU, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bentley Car of ₹ 11,40,000/- ii) Disallowance of loss on fixed assets of ₹ 1,69,498/-. iii) Addition on account of reduction in professional receipts of ₹ 3,66,027/-. 3.1 The AO initiated the penalty proceedings u/s. 271(1)(c) of the Act and held that the assessee has concealed his income and has furnished inaccurate particulars by wrongly claimed depreciation on Bentley car and also claimed wrong expenses under the head loss on fixed assets in his return. Considering the above, the AO levied the penalty of ₹ 4,04,635/- u/s. 271(1)(c) of the Act vide order dated 25.7.2013. 3.2 Being aggrieved by the penalty order dated 25.7.2013 passed by the AO of ₹ 4,04,635/- u/s. 271(1)(c) of the I.T. Act, 1961, the assessee appealed before the Ld. CIT(A), who vide his impugned order dated 07.10.2014 has confirmed the penalty imposed by the AO. 4. Against the above order of the Ld. CIT(A) dated 07.10.2014, assessee is in appeal before the Tribunal. 5. During the hearing, Ld. Counsel of the assessee has stated that Ld. CIT(A) erred in confirming the penalty of ₹ 4,04,635/- u/s. 271(1)(c) of the Act by alleging that the assessee furnished i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name was completed in November, 2009 for which part payment was made in May, 2009. He further stated that assessee was personally driving the car and had never maintained any log books in respect of a car which is under his personal use and in order to avoid any suggestion the assessee had made a claim which was not justified and accordingly he advised his accountant not to pursue the matter any further and to withdraw the claim. But unfortunately this has been construed in the order as an admission that the claim itself was false. In the second Paper Book which is containing pages 1 to 140 in which the assessee s counsel has attached the copies of the decisions i.e. Mysore Mineral Ltd. Vs. CIT (SC) (1999) 239 ITR 75, ITO, Ward 15(3), New Delhi vs. M/s Rawalpindi Jewellers Pvt Ltd. ITA Nol. 3855/Del/2007 (AY 2004-05), Dilip Kumar Roy vs. CIT, Poona (1974) 94 ITR 1; CIT, Tamil Nadu-IV, vs. Imperial Automobiles (1983) 14 ITR 60; Kanbay Software India (P) Ltd. Vs. DCIT, Circle 8, Pune (2009) 31 SOT 153; DCIT vs. Royal Metal Printers (P) Ltd (2005) 93 TTJ 119; DCIT vs. M/s Security Printing and Minting Corporation of India Ltd. ITA No. 4871/Del/2013 (SY 2006-07) and Price Waterhouse Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aws:- i) MAK Data P. Ltd. Vs. CIT (38 Taxmann.com 448) /(2013 358 ITR 593 ii) CIT vs. Escorts Finance Ltd. (183 Taxman 453). iii) CIT vs. Zoom Communication (P) Ltd. 191 Taxman 179 (Delhi). iv) BA Balasubramaniam and Bros. Co. Vs. CIT (1999) 236 ITR 977 (SC). v) CIT vs. Reliance Petroproducts (2010) 189 Taxman 322 (SC) vi) Union of India vs. Dharmendra Textile Processors (2007) 295 ITR 244. 7. We have heard both the parties and perused the records available with us especially the order passed by the revenue authorities and we find that the assessee has filed his return of income for the assessment year in dispute on 14.10.2010 declaring total income of ₹ 34,74,20,950/-. Assesse has also filed his revised return of income on 31.3.2012 declaring total income of ₹ 34,94,15,822/- and AO has completed the assessment u/s. 143(3) of the Act on 08.1.2013 at the total income of ₹ 35,10,91,350/- by making the addition of ₹ 11,40,000/- on account of depreciation allowance for the first half added back on Bentley Car offered and added to the computation of income to avoid litigation; Loss on fixed assets omitted to be added back due to oversight amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no documentary evidence which could support the fact that the assessee owned the car since May, 2009 as the registration of the car in his name was completed in November, 2009 for which part payment was made in May, 2009. He further stated that assessee was personally driving the car and had never maintained any log books in respect of a car which is under his personal use and in order to avoid any suggestion the assessee had made a claim which was not justified and accordingly he advised his accountant not to pursue the matter any further and to withdraw the claim. On perusing the detailed affidavit, it is established that the car was used for his professional pursuits. We have also perused the page no. 68 94 of PB which are the copy of the Motor Insurance Cover Note dated 04.05.2009 and copy of Credit Card statement of Standard Chartered Bank of the assessee; the page no. 106, 107, 111, are the copies of ledger account of the assessee for the period 31.3.2006 to 31.3.2010 showing the date 16.05.2009 on which date a payment of ₹ 22 lacs was debited to Mr. K. Iyer towards part payment of Bentlay Car; copy of Bank statement of assessee showing DD dated 16.5.2009 to Mr. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessee was having any mala fide intention to conceal his income or for furnishing inaccurate particulars of income is not correct, hence, the penalty in dispute needs to be deleted. We further note that the case laws relied upon by the Ld. DR are distinguishable to the facts of the present case, hence, the same are not applicable in the present case. Whereas the facts and circumstances of the case law cited by the Ld. Counsel of the assessee i.e. decision of the ITAT, Mumbai Bench in the case of CIT vs. Royal Metal Printers (P) Ltd. Passed in ITA No. 3597/Mum/1996 AY 1991-92 dated 8.10.2003 reported in (2005) 93 TTJ (Mumbai) 119 in which the Judicial Member was the Author of decision is similar and identical to the present case, wherein it was held penalty under section 271(1)(c) of the Act could not be levied simply because the assessee had withdrawn the claim for depreciation after the survey operation and penalty was deleted. In the present case, it is also noted that AO has not brought on record any material or evidence on the basis of which it could be concluded that the assessee had concealed income or furnished inaccurate particulars of income. 8. Keeping in view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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