2012 (12) TMI 600 - AT - Income Tax

Penalty for concealment of income u/s 271(1)(c) - Assessee claim 100% depreciation in the concerned assessment year without noticing the amendment for the year - AO had initiated penalty u/s 271(1)(b) - CIT issued notice u/s 263 since the AO had failed to initiate penalty proceedings u/s 271(1)(c) - CIT has set aside the assessment to the AO for fresh consideration - Held that - As the AO had taken a conscious decision not to levy penalty under section 271(1)(c) and the contention raised had not been properly addressed by the CIT. W.e.f 01/06/2002 CIT is authorized to initiate and levy penalty under section 271(1) and therefore, there was no necessity to set aside the assessment for fresh consideration. Case remand back to CIT.

Summary

Issues:
1. Revision under section 263 of the Income Tax Act against the order of the Commissioner of Income Tax (CIT) dated 28/3/2011.
2. Disallowance of 100% depreciation claimed on centering material by the Assessing Officer.
3. CIT's decision to set aside the assessment and direct a fresh assessment due to non-initiation of penalty proceedings under section 271(1)(c) of the Act by the Assessing Officer.

Analysis:
1. The appeal was against the CIT's order under section 263 of the Income Tax Act regarding the assessment year 2006-07. The grounds raised by the appellant challenged the CIT's decision, arguing that it was against law and facts of the case. The appellant contended that there was no error prejudicial to revenue in the original assessment order, and the CIT's decision to set it aside was unwarranted.

2. The dispute arose from the disallowance of 100% depreciation claimed on centering material by the Assessing Officer during the scrutiny assessment. The CIT issued a notice under section 263, stating that the failure to initiate penalty proceedings under section 271(1)(c) made the assessment erroneous and prejudicial to revenue. The appellant argued that the claim for 100% depreciation was made in good faith, unaware of the amendment fixing the rate at 15% from the assessment year 2006-07.

3. The CIT relied on a High Court judgment to set aside the assessment, emphasizing that non-initiation of penalty proceedings was prejudicial to revenue. However, the appellant argued that penalty was not imposable as the claim was bona fide and consistent with previous years. The tribunal noted that the CIT could have initiated penalty proceedings and did not need to remit the case back to the Assessing Officer. The tribunal quashed the CIT's decision and directed the CIT to determine the imposition of penalty after affording the appellant a hearing.

This detailed analysis covers the issues raised in the legal judgment, providing a comprehensive understanding of the arguments presented and the tribunal's decision on each issue involved.