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2018 (9) TMI 1559 - DELHI HIGH COURTPenalty u/s 271(1)(c) - claim of depreciation on the NH-6 constructed by them on built, operate and transfer basis @ 10% - bonafide claim - Held that:- There is a difference between assessment proceedings and penalty proceedings and applies explanation (1) to Section 271 (1) (c). It refers to divergence of legal opinion on the question whether an assessee, who has constructed an infrastructure project such as roads or highways on build, operate and transfer basis could claim depreciation or was entitled to treat the entire cost as amortized expenditure, an expression not used in the Act. These were highly debateable and contentious issues. Noticeably, the Assessing officer had allowed the claim for depreciation on roads @ 10% under Section 32 of the Act in the original assessment proceedings. In the present case, assessee had already filed return for the year in question claiming deprecation, which had been allowed by the Assessing Officer. The respondent-assessee did not consider it appropriate to modify the claim that had been allowed and accepted in the regular assessment in the return filed pursuant to notice under Section 153A of the Act. The conduct of the respondent-assessee or examination of facts has been found and held to be bonafide. Facts of the case cannot and would not justify levy of penalty under Section 271(1)(c). Findings of the CIT (Appeals) and the Tribunal deleting penalty are reasonable and justified and primarily predicated on facts - Decided against revenue
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