TMI Blog2018 (1) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of assessee was allowed in entirety. Consequent thereto, enhancement made by the CIT(A) in the quantum proceedings has been reduced to Nil in the hands of assessee. Consequent thereto, there is no basis for levy of penalty under section 271(1)(c) of the Act. - Decided in favour of assessee - ITA No.2276/PUN/2012 - - - Dated:- 12-1-2018 - MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM For The Appellant : Shri Percy J. Pardiwala Ms. Vasanti Patel For The Respondent : Shri Rajeev Kumar, CIT ORDER PER SUSHMA CHOWLA, JM: The appeal filed by the assessee is against the order of CIT(A)-I, Thane, dated 03.09.2012 relating to assessment year 2004-05 against levy of penalty under section 271(1)(c) of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve said disallowances. 6. The CIT(A) confirmed the above said disallowances but also enhanced the assessment by sum of ₹ 24,83,55,826/-. The CIT(A) also initiated penalty proceedings under section 271(1)(c) of the Act for furnishing inaccurate particulars of income in respect of income enhanced, by issuance of notice under section 274 r.w.s. 271(1)(c) of the Act, dated 21.03.2012. The assessee before the CIT(A) furnished explanation as to why penalty under section 271(1)(c) of the Act should not be levied. The said submissions of assessee are reproduced by the CIT(A). After referring to the facts of the case at pages 8 to 26 of the appellate order, the CIT(A) vide para 5 at page 26 deals with first enhancement notice under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the year, it had claimed depreciation on the opening WDV; the CIT(A) did not accept the claim of assessee in this regard. Another notice of enhancement was issued under section 251(2) of the Act, dated 15.02.2012 by the CIT(A) on the ground that purchase price had been paid to acquire a going concern i.e. an undertaking and no cost could be attributed to the individual assets. The CIT(A) denied depreciation on the same also. In the penalty order passed under section 271(1)(c) of the Act vide para 7 at page 69 onwards, the CIT(A) takes note of the quantum order in this respect and held that the value assigned to the assets was merely on guess work and at most an estimated cost of particular asset, which could not be equated at all with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf liable for penal consequences u/s. 271(1)(c) of the Act. The tax sought to be evaded on income of ₹ 24,83,55,826/- works out to ₹ 8,90,97,652/- keeping in view the provisions of Explanation 4 and accordingly the minimum and maximum penalty @ 100% and 300% of the tax sought to be evaded come to ₹ 8,90,97,652/- and ₹ 26,72,92,956/-, respectively. However, considering the In the totality of the above said facts and circumstances, of facts and circumstances of the case, I impose a minimum penalty of 100% amounting ₹ 8,90,97,652/-. The A.O is directed to issue the notice of demand and challan for the penalty of ₹ 8,90,97,652/- and serve the same along with this penalty order on the assessee immediately. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at slump price had to be bifurcated over the cost of tangible assets and balance consideration has to be attributed to goodwill, know-how, patents and trademarks. The Tribunal after taking into consideration the factual and legal aspects of the case and the claim of assessee, held the assessee to be entitled to claim depreciation both on tangible and intangible assets, including depreciation on non-compete fees. The claim of assessee was allowed in entirety. Consequent thereto, enhancement made by the CIT(A) in the quantum proceedings has been reduced to Nil in the hands of assessee. Consequent thereto, there is no basis for levy of penalty under section 271(1)(c) of the Act. Accordingly, we direct the Assessing Officer to delete penalty le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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