2010 (6) TMI 566 - AT - Income Tax

Penalty - Disallowance - Scrutiny - Bank guarantee commission - Depreciation - it was submitted that the bank guarantee commission was eligible for deduction under the mercantile system of accounting as and when paid to the bank - the assessee company did not prefer any appeal before the ITAT because in ultimate result, deduction was granted to the assessee company albeit in the different assessment years - The AO in his order has not brought out as to how the assessee furnished inaccurate particulars of income in respect of amount claimed towards bank guarantee commission when undisputedly, a similar claim of the assessee had been allowed in the preceding years - when no material has been brought to our notice by the Revenue, controverting the findings of the Ld. CIT(A) while cancelling the penalty in relation to amount disallowed on account of bank guarantee commission nor any contrary decision has been brought to our notice in this connection - Decided in the favour of the assessee Regarding depreciation - the burden which lies on the assessee has not been discharged by convincing explanation and evidence nor it is law that any explanation offered by the assessee must be accepted - Decided against the assessee

Summary

Issues Involved:
1. Recalculation of penalty under section 271(1)(c) of the Income-tax Act, 1961 concerning the disallowance of bank guarantee commission.
2. Confirmation of penalty under section 271(1)(c) on disallowance of depreciation.
3. General grounds raised by the Revenue.

Issue-wise Detailed Analysis:

1. Recalculation of Penalty under Section 271(1)(c) for Bank Guarantee Commission:
The Revenue appealed against the CIT(A)'s decision to direct the AO to recalculate the penalty under section 271(1)(c) after excluding the disallowance of Rs. 10,46,098 for the bank guarantee commission. The CIT(A) had held that no penalty was leviable on this disallowance, which was confirmed in the quantum appeal.

The assessee argued that the bank guarantee commission was eligible for deduction under the mercantile system of accounting as and when paid to the bank. The assessee had a bona fide belief that the deduction was allowable, as it had been claimed similarly in previous years. The AO, however, disallowed the commission, arguing that it should have been treated as prepaid expenses.

The Tribunal found that the AO did not demonstrate how the assessee furnished inaccurate particulars of income regarding the bank guarantee commission. The Tribunal noted that the assessee disclosed all relevant facts and that the disallowance was due to a difference in opinion regarding the period of the claim's allowability. Citing various judicial precedents, the Tribunal concluded that a mere rejection of the claim does not amount to concealment or furnishing inaccurate particulars. Therefore, the Tribunal upheld the CIT(A)'s decision to cancel the penalty related to the bank guarantee commission.

2. Confirmation of Penalty under Section 271(1)(c) on Disallowance of Depreciation:
The assessee had claimed depreciation on lab and office equipment based on a JV entry dated 31.3.2001 and a delivery cum debit note issued by M/s Unitech Ltd. The AO disallowed the depreciation, noting that M/s Unitech Ltd. had claimed ownership and depreciation on the same assets.

The CIT(A) upheld the penalty, stating that the assessee claimed depreciation without being the owner of the assets and without using them for its business. The Tribunal agreed, noting that the assessee could not substantiate its explanation and that the claim was found to be false. The Tribunal emphasized that the penalty under section 271(1)(c) is applicable when the assessee furnishes inaccurate particulars of income. The Tribunal cited judicial precedents to support that the burden of proof lies on the assessee to rebut the presumption of concealment, which the assessee failed to do. Therefore, the Tribunal upheld the CIT(A)'s decision to confirm the penalty on the disallowed depreciation.

3. General Grounds Raised by the Revenue:
The Tribunal dismissed the general grounds raised by the Revenue as they did not require separate adjudication.

Conclusion:
The Tribunal dismissed both the appeal by the Revenue and the cross-objection filed by the assessee. The penalty related to the bank guarantee commission was canceled, while the penalty on the disallowed depreciation was upheld.