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TMI Blog2010 (5) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... as under : "The assessee-company during the year under consideration claimed depreciation on building, however it was noticed that the value of land on which the building was standing was not reduced for the purpose of computation of depreciation. There was no land appearing in the depreciation chart. When the above was pointed out the assessee conceded the position of law that depreciation could not have been allowed on the land underneath the building. Accordingly value of the land and building was bifurcated on the basis of the valuation report of a recognised valuer. On the basis of the said valuation report it was ascertained that excess depreciation to the tune of Rs. 94,347 was claimed and allowed during the year under considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HHD(4)(b). The act of the assessee was neither deliberate nor was with an intention to evade tax." The Assessing Officer did not accept the assessee's contentions and proceeded to levy penalty under section 271(1)(c) of the Income-tax Act amounting to Rs. 60,000. Upon the assessee's appeal the learned Commissioner of Income-tax (Appeals) confirmed the penalty by, inter alia, referring to the decision of the hon'ble apex court in the case of Union of India v. Dharamendra Textile Processors [2008] 306 ITR 277. Against this order the assessee is in appeal before us. We have heard both the counsels and perused the records. We find that the first addition in this case is made on account of depreciation claimed on the component of land in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow as regards the claim of deduction under section 80HHD the total utilisation in that regard upto March 31, 2005 should have been Rs.12,73,384, but the Assessing Officer found that the assessee actually utilised Rs. 11,96,910 only by purchase of new car and new coaches. The assessee has also claimed Rs. 76,474 in this regard by purchase of motor cycles. This claim was disallowed by the Assessing Officer as he held that purchasing motor cycles cannot tantamount to utilisation for the purpose specified as mentioned as section 80HHD(4). However, this claim was disallowed by the Assessing Officer holding that the claim was admissible only for new car and new coaches. Now in this background we have to see whether the assessee is guilty of pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act, or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute." As regards the decision of the hon'ble apex court in the case of Dharamendra Textile Processors [2008] 306 ITR 277, we find that the same is not applicable to the present case, as in the present case we do not find there is any concealment or furnishing of inaccurate p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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