TMI Blog2021 (7) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, there is no question of furnishing inaccurate particulars of income. As in assessee's own case [ 2017 (8) TMI 915 - ITAT MUMBAI] decided the issue as to the claim of depreciation of the assessee without deducting the amount of conditional grant received by the assessee from the actual cost from the WDV of the plant and machinery in favour of the assessee. So, in view of the matter, we are of the considered view that it is merely a case of difference arising out of the reworking of the carry forward depreciation by the AO by allowing more depreciation than claimed by the assessee company and not a case of concealing of income or furnishing of inaccurate of particulars of income. Consequently, finding no illegality or perversity in the impugned order passed by the ld. CIT (A) who has rightly deleted the penalty levied by the AO, the appeal filed by the Revenue is hereby dismissed. - ITA No.5405/Del./2017 - - - Dated:- 9-7-2021 - Shri N.K. Billaiya, Accountant Member And Shri Kuldip Singh, Judicial Member For the Assessee : Ms. Ananya Kapoor, Advocate For the Revenue : Shri Prakash Dubey, Senior DR ORDER PER KULDIP SINGH, JUDICIAL MEMBE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other hand, it is the case of the assessee company that it has claimed depreciation as per the Act to the tune of ₹ 6,35,84,390/- after making adjustment of gross total income arrived at ₹ 11,09,985/-. It is also a fact on record that as per original computation of income, assessee has computed ₹ 11,09,985/- under the normal provisions of the Act and claimed depreciation of ₹ 6,35,84,390/- on the brought forward unabsorbed depreciation of ₹ 10,56,06,113/- whereas the AO allowed depreciation as per the Act at ₹ 7,14,24,272/- and carry forward losses arrived at ₹ 35780180/- as carry forward depreciation reduced by the AO has automatically increased to ₹ 3,30,96,030/-. 6. In the backdrop of the aforesaid facts and circumstances of the case, order passed by the lower authorities and arguments addressed by the authorized representatives of both the parties, the sole question arises for determination in this case is:- as to whether the assessee has concealed particulars of income or has furnished inaccurate particulars of income during assessment proceedings? 7. Ld. CIT (A) deleted the penalty levied by the AO by ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,113) GROSS TOTAL INCOME 11,09,985 Whereas the Ld. AO has allowed the correct depreciation at ₹ 7,14,24,272/- in the Assessment order page 5 of the assessment order as under: Business Income Gross total Income before depreciation 17,03,00,488 Less: Correct Allowable Depreciation 7,14,24,272 Less: Correct set off of losses allowable AY 2000-01 4,24,43,864 AY 2001-02 2,33,36,322 6,57,80,186 Taxable Income 3,30,96,030 Accordingly the AR pleads that excess depreciation allowed by the AO resulted in reduction of carry forward losses which further lead to taxable income arrived by the AO at ₹ 3,30,96,030/- as against income offered by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have also gone through the jurisdictional High Court decision in the case of CIT vs. First Data India Ltd., ITA No. 2085 of 2013 dtd. 18.01.2016- wherein it is held that: Where assessee had only claimed expenditure which was disallowed by AO and due to which carry forward loss arose. It could not be said that assessee had furnished inaccurate particulars of income by showing carried forward loss as once a loss was shown in e-return, the software suo-moto reflects the returned loss as carried forward loss. Further the fact that the assessee had not claimed carry forward loss in subsequent year was evident of the fact that there was no intent on part of assessee to furnish inaccurate particulars. Considering the above fact on record, the appellant company has furnished information before the AO, however, the AO suo moto made some objection for the depreciation and carry forward depreciation and also respectfully following the Hon'ble jurisdictional High Court decision in the case of CIT vs First Data India Ltd., I am of the considered opinion this is not fit case of penalty u/s. 271(I)(c) of the Act, therefore, the AO is directed to delete the penalty. Hence this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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