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TMI Blog2010 (2) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty is not leviable. when all the facts are stated correctly but only because there is difference of opinion between the assessee and Assessing Officer on one side and the Tribunal on the other side, it cannot be said that there is concealment of particulars of income so as to levy penalty, penalty levied under sec.271(1)(c) of the Act canceled, the appeal is allowed X X X X Extracts X X X X X X X X Extracts X X X X ..... of depreciation of a sum of Rs.9,99,400/-. Thus the returned loss of Rs.77,280/- was converted into income of Rs.9,22,120/-. The assessment order was upheld by the Commissioner (Appeals). The assessee carried the matter further before the Tribunal. The Tribunal by its order dated 8th February, 2005 held that the entire transaction is a financing transaction and not a lease transaction. Therefore, the assessee is not entitled to depreciation. At the same time the Tribunal also held that the entire lease rent received by the assessee cannot be taxed and only the interest component of Rs.2,26,840/- was brought to tax over a period of 3 years. As per the direction of the Tribunal the lease rental offered by the assessee of Rs.4,62,240/- was exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not on the ground that the transaction is not a lease transaction. If the transaction is the lease transaction, the assessee had rightly claimed depreciation. The necessary particulars in this regard were filed by the assessee only and only on appreciation of such particulars, the view of the Assessing Officer in the assessment proceedings were that the depreciation should be allowed to the extent of cost with the original owner. However, prior to the order of the Tribunal the assessee had all along declared the entire rental as its income, which has been assessed as such. There is no concealment of particulars of income. The total income offered by the assessee from the said transaction was only Rs.2,26,840/-. This had already been off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 TTJ 289; 3. CIT vs. M/s. Sidhartha Enterprises, Ludhiana, order dated 14.07.2009 by Punjab and Haryana High Court; and 4. CIT vs. Arisudana Spinning Mills Ltd., order dated 19.11.2009 by Punjab and Haryana High Court. Copies of the said orders were filed before us. 6. The learned DR Shri Kishore B on the other hand, submitted that as per order of Tribunal, what is concluded is that the transaction was in the nature of financing transaction and hence the assessee was incorrect in claiming depreciation thereon. The assessee should also have offered interest income on such financing transaction as its income. Since the assessee made incorrect claim of depreciation at 100% and also did not offer interest income for tax, penalty is lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te analysis Rs.2,26,840/- is the income of the assessee in the form of interest and it was also directed to be spread over the period of lease. Thus looking to the conduct of the assessee, it can be said that the assessee had already offered net income of Rs.2,26,840/- which is in tune with the direction of Tribunal also. If as per the order of Tribunal, the transaction is a financing transaction, it cannot be said that the assessee has concealed the particulars of income or furnishing inaccurate particulars of income. The particulars were correctly stated but the view of the assessee and the Assessing Officer on one hand differs with the view of the Tribunal. This itself will not amount to concealment of particulars of income. Since in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of particulars of income or furnishing inaccurate particulars of income and hence penalty is not leviable. In our opinion the order of Hon'ble Punjab and Haryana High Court supports the view what we have taken as noted above. Hon'ble Punjab and Haryana High Court in the case of CIT vs. M/s. Sidhartha Enterprises (supra) held that when the assessee claimed loss on sale of machinery, which being a capital loss against the profits of business and in respect of which correct particulars are filed but only being a mistake of the counsel, on such mistake penalty is not leviable. It was found that when the mistake committed by the counsel was accepted by the assessee, penalty is not automatic. Hon'ble High Court held that even after the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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