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TMI Blog2011 (8) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... essee, but is a clear case of 'false claim', Assessing Officer was justified in imposing the penalty under section 271(1)(c) of the Act. The same, therefore, upheld." - IT APPEAL NO. 1750 (DELHI) OF 2010 - - - Dated:- 5-8-2011 - C.L. SETHI, B.C. MEENA, JJ. Rakesh Kumar for the Appellant. Ms. Pratima Kaushik for the Respondent. ORDER B.C. Meena, Accountant Member. This appeal filed by the assessee is directed against the order of the CIT (Appeals)-VI, New Delhi dated 1-1-2010 for the assessment year 2003-04. The grounds of appeal taken by the assessee read as under : "1. That the ld. Commissioner of Income-tax (Appeals) has erred in law and on facts in upholding the order of the Assessing Officer imposing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Rs. 15,04,000 paid to DDA were disallowed and penalty proceedings under section 271(1)(c) for furnishing inaccurate particulars in the return of income. The Assessing Officer levied the penalty under section 271(1)(c) amounting to Rs. 1,40,760. The CIT(A) has confirmed the action of the Assessing Officer by holding as under : "5. I have carefully considered the submissions made by ld. AR, and have gone through the penalty order. The penalty has been levied on account of claim of sub-letting charges of Rs. 15,04,200. While computing the income from House Property, the assessee has claimed Rs. 49,50,370 as house tax paid. On page 2 of the assessment order, it has been discussed that the assessee was required to file the details of ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of a bona fide error on the part of the assessee. As has been pointed out above, the relief available under section 35D of the Act to a finance company is ex facie inadmissible as that is confined only to the existing industrial undertaking for their extension or for setting up a new industrial unit. It was, thus, not a 'wrong claim' preferred by the assessee, but is a clear case of 'false claim'. In CIT v. Vidyagauri Natverlal [1999] 238 ITR 91, Gujarat High Court made a distinction between wrong claim as opposed to false claim and held that if the claim is found to be false, the same would attract penalty. We may also take note of the following observations of the Supreme Court in the case of Union of India v. Dharamendra Textile Proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the claim was made under advice of tax expert. But claim of assessee is also not supported by any documentary evidence. Who provided such advice and when? Once the return was filed by not claiming these expenses than under what circumstances the advice was sought for. Nothing has been filed in this regard. Even the assessee has not filed anything about type of advice provided. Who asked for such advice from whom, how much fee was paid for such advice, all these things have not been established by the assessee except the claim that return was revised under such advice of the tax expert. Further, the assessee's claim that it was a bona fide claim and it was not a false claim is also not true. The facts of case show that the assessee at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e particulars. The addition was only on account of difference in estimate made by the assessee and the other estimate made by the Assessing Officer. Therefore, in so far as this claim was concerned, if the Assessing Officer reduced it from 50 per cent, to 35 per cent, that could not attract penalty. (ii) That the assessee had nowhere pleaded that the return was filed claiming benefit of section 35D of the Act on the basis of the opinion of the chartered accountants. Merely because information was available in the tax audit report that would not absolve the assessee. Even if there was no concealment of income or furnishing of inaccurate particulars, but on the basis thereof the claim which was made was ex facie bogus, it could attract pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As regards the amount claimed on account of unusable and discarded assets, the Tribunal, was entirely incorrect in taking the view that the deduction claimed by the assessee was admissible to it under section 32(1)(iii). Clause (i) of sub-section (1) of section 32 relates to assets of an undertaking engaged in generation and/or distribution of power. Admittedly, the assessee-company was not engaged in generation and for distribution of power, during the relevant year. Thus, the provisions, of clause (i) of sub-section (1) of section 32 would not apply in respect of the assets claimed to have become unusable and written off. Therefore, the assessee had no justification to claim this amount of Rs. 13,24,539 as a revenue expenditure. In fact, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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