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2023 (10) TMI 199 - ITAT DELHIPenalty u/s 270A - under-reporting in consequence of misreporting of income - incorrect amount of excess allowance u/s 32AC claimed by the Appellant in its ITR - HELD THAT:- It is absolutely not in dispute in the instant case that assessee is indeed entitled for deduction u/s 32AC in view of the investment made in new plant and machinery. In fact the AO on being satisfied about the eligibility of the assessee to claim deduction u/s 32AC of the Act had indeed granted deduction @15% of value of new plant and machinery. Hence, the preliminary objection raised by the DR in this regard that assessee is not eligible to claim deduction u/s 32AC of the Act, does not have any legs to stand in the eyes of law and we hold that the DR is trying to make out a new case before the Tribunal which is not even the case of lower authorities. All these facts collectively go to prove that the assessee had come forward voluntarily before the ld AO to withdraw the excess claim of its deduction u/s 32AC of the Act before any detection by the Income Tax Department. Hence, in our considered opinion, the assessee’s case would squarely fall under the exception provided u/s 270A(6)(a) wherein, the assessee had given its bona fide explanation and had disclosed all the material facts that are relevant for the explanation offered. In view of the exception provided in section 270A(6)(a) of the Act, we hold that the present facts does not make the revenue eligible to levy penalty u/s 270A of the Act. AR also made argument on the ground that there was absolutely no mala fide intention on the part of the assessee to claim excess deduction u/s 32AC of the Act in the facts of the instant case as even after the withdrawal of the differential 85% claim of deduction in the sum of Rs. 191 crores, the assessee still has brought forward losses to the tune of Rs. 2698.95 crores as is evident from the schedule CFL (details of loss to be carry forward) in the ITR filed for AY 2017-18. We are in agreement with this argument of the AR which proves the intention and behaviour of the assessee to withdraw the claim of deduction voluntarily by the assessee. Relief has already been granted to the assessee by applying the provisions of the Act itself considering the bonafide conduct of the assessee and the counter given by the DR. Hence, we direct the AO to delete the levy of penalty. Appeal of assessee allowed.
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