2016 (12) TMI 294 - AT - Income Tax

Penalty u/s. 271(1)(c) - depreciation u/s. 32(l)(ii) on leasehold rights in industrial land belonging to MIDC as an intangible asset - Held that - The provisions of the Act cannot be interpreted to mean that leasehold rights granting such type of ownership over land, etc. would also qualify as intangible assets for the purpose of depreciation under the Act. According to the Tribunal in assessment year 2006-07, this would lead to a conflicting situation where land acquired on freehold basis would not be eligible for depreciation but similar land acquired on leasehold basis would be eligible for depreciation that too at a higher rate. In the facts and the circumstances of the case, the Tribunal confirmed the action of the AO in disallowing the claim of depreciation on leasehold rights over the land treating the same as intangible asset u/s 32(1)(ii) of the Act. Thus as claim of the assessee in any case, was not sustainable in law and in view of the above, where the explanation of the assessee is not found to be bonafide, the assessee is liable to levy of penalty under section 271(1)(c) of the Act. Accordingly, we uphold the order of CIT(A) in confirming the levy of penalty under section 271(1)(c) of the Act. - Decided against assessee

Summary

Issues Involved:
1. Validity of the order passed under Section 271(1)(c) of the Income Tax Act, 1961.
2. Merits of the case regarding the claim for depreciation on leasehold rights in land.

Issue-Wise Detailed Analysis:

1. Validity of the Order Passed Under Section 271(1)(c) of the Income Tax Act, 1961:

The assessee challenged the validity of the penalty order under Section 271(1)(c) on the grounds of uncertainty regarding the exact charge at the time of initiation and levy of the penalty. The notice issued under Section 274 read with Section 271 did not specify whether the penalty was for furnishing inaccurate particulars of income or for concealment of income, and the irrelevant clause was not struck off. The Assessing Officer (AO) mentioned both concealment of income and furnishing inaccurate particulars in different parts of the assessment and penalty orders, leading to confusion. The assessee argued that this lack of clarity invalidated the penalty proceedings. The Tribunal, however, upheld the penalty, emphasizing that the same set of facts had been adjudicated in the preceding assessment year (2006-07), where the penalty was confirmed.

2. Merits of the Case Regarding the Claim for Depreciation on Leasehold Rights in Land:

The assessee claimed depreciation under Section 32(1)(ii) on leasehold rights in industrial land as an intangible asset, which was disallowed by the AO. The AO initiated penalty proceedings for making a wrong claim. The assessee contended that full particulars were furnished, and the claim was made in good faith, substantiated by various judicial precedents allowing such claims. The Tribunal noted that the Special Bench of the Tribunal in the case of Joint Commissioner of Income Tax Vs. Mukund Ltd. had decided against the assessee's claim. Despite this, the assessee claimed depreciation, which was not considered bona fide. The Tribunal also referred to several cases where similar claims were allowed but maintained that the assessee's claim was not sustainable in law.

The Tribunal reiterated that the penalty was justified as the claim was not bona fide and upheld the penalty under Section 271(1)(c) for furnishing inaccurate particulars of income. The Tribunal dismissed the appeal, following the precedent set in the previous assessment year (2006-07), where identical facts were adjudicated, and the penalty was confirmed.

Conclusion:

The Tribunal dismissed the appeal, confirming the penalty under Section 271(1)(c) for furnishing inaccurate particulars of income. The order of the Commissioner of Income Tax (Appeals) was upheld, and judicial propriety was maintained by following the decision in the preceding assessment year. The assessee's arguments regarding the validity of the penalty order and the merits of the depreciation claim were not accepted.