TMI Blog2019 (1) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the appeal of the assessee is dismissed. - I.T.A. No. 6035/DEL/2015 - - - Dated:- 17-1-2019 - SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER For The Appellant : Sh. Pawan Jand, CA For The Respondent : Smt. Naina Soin Kapil, Sr. DR ORDER PER SUCHITRA KAMBLE, JM This appeal is filed by the assessee against the order dated 17/08/2015 passed by CIT(A)-1, New Delhi for Assessment Year 2008-09. 2. The grounds of appeal are as under:- 1. That the learned CIT (Appeals] erred in law and on facts in upholding the order of penalty under section 271(l)(c) of the Income Tax Act, 1961. 2. That the learned CIT (Appeals] erred in law and on facts in not considering th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as rented out to M/s Glyph International. Accordingly the Assessing Officer disallowed the excess depreciation claimed of ₹ 7,94,151/- and initiated penalty proceedings u/s 271(1)(c) of the I.T Act. The assessee filed appeal before CIT(A) against the said disallowance by the Assessing Officer . The CIT(A) upheld the disallowance. Thereafter, show cause notice was issued by the AO vide his letter dated 18.03.2014 fixing the date of hearing on 25.03.2014. The assessee filed its submissions which was considered by the AO and held that the assessee tried to claim deduction under section 24 as well as depreciation u/s 32 of the I.T. Act, in respect of the premises let out by it. Thus, it was established that the assessee has furnished inac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion let out. The assessee had worked out the disallowance based on the cost of construction allocable to the let out portion and that which was being used for the purpose of the business of the assessee. This was based on the fact that the assessee had incurred a cost of ₹ 24,09,000 on the renovation of the portion being used for the purpose of the business after letting out the property. However, the Assessing Officer, disallowed 2/3rd of the depreciation based on the area ignoring the cost of construction. Even while working out the area, the Assessing Officer allocated proportionately the common area such as driveway etc. despite the fact that these were exclusively being used by the assessee and were not let-out. The assessee howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclosed income from house property in the computation of income and had also disclosed the depreciation which was as per the tax audit report attached to the return. Thus there was no concealment of any facts or providing of inaccurate particulars by the assessee at the time of filing of return. Thus, the Ld. AR further submitted that the addition has not been made due to any concealment of facts or furnishing of inaccurate particulars - a sine qua non for imposition of penalty under Section 271(l)(c). The addition has been made due to a genuine bonafide mistake of the assessee caused by the reliance on the tax audit report for claiming depreciation. Therefore, the Ld. AR submitted that no penalty is leviable as the mistake was bonafide and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a bonafide mistake and has relied upon the judgment of Hon ble Supreme Court in the case of Price Water House Coopers Pvt. Ltd. Vs. CIT (2012) 345 ITR 306 (SC). It also relied upon the judgment of Hon'ble Delhi High Court in the case of CIT Vs Societex (2012). However, the complete details of the case and citation of the judgment has not been provided. The appellant claimed that it was a bonafide error and penalty is not leviable. However, the facts speak otherwise. On detection of the claim of depreciation by the Assessing Officer, it was found that appellant had offered only 50% claim of the depreciation as its income. However, on enquiry conducted by the ITI, it was found that the appellant had given two third part of the premis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r year. Therefore, the penalty levied by the Assessing Officer is confirmed. In result, the appeal is dismissed. The CIT(A) has given categorical finding that the mistake in present case was not bonafide. From the records also, we can see that the assessee company only offered 50% claim of depreciation as its income and conveniently/deliberately concealed the actual fact that 2/3 part of the premises was on rent. In fact, the assessee repeated the said claims of depreciation as well as deduction u/s. 24 in A.Y. 2006-07 and 2008-09. Thus, the Assessing Officer rightly levied the penalty u/s 271 (1)(c) of the Act. There is no need to interfere with the order of the CIT(A) as the assessee has deliberately given inaccurate particula ..... X X X X Extracts X X X X X X X X Extracts X X X X
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