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TMI Blog2012 (7) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee is in not giving proper effect to P&L A/c can be held to be of technical or venial in nature and not to concealing particulars of income or inaccurate particulars - for 43B disallowance assessee has given satisfactory explanation that revised return was prepared which was not filed by the Chartered Accountant due to dispute on payment of professional fees - no point of concealment or inarticulateness proved - in favour of assessee. - ITA No. 3890/Del/10 - - - Dated:- 29-6-2012 - SHRI R.P. TOLANI AND SHRI K.G. BANSAL JJ. Appellant by : Shri Sanjay Joshi CA. Respondent : Mrs. Geetmala Mohanany CIT DR O R D E R PER R.P. TOLANI, J.M:: This is assessee s appeal against CIT(A) s order dated 9-6-201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the PF and ESI dues. Auditors reported this fact in the disclosure that the company was sic within the meaning of Sic Industrial Companies (Special Provisions), Act, 1985. The assessee has not filed any inaccurate particulars or concealed any income, therefore, it was not liable for any penalty. Reliance was placed on Hon ble Supreme Court s judgment in the case of Reliance Petroproducts 322 ITR 158(SC). Assessing Officer , however, held that though the assessed income was in loss, nevertheless there was difference between the returned and assessed loss of the assessee and notional tax sought to be evaded due to difference in assessed and returned loss was subjected to penalty. 2.4. Aggrieved, assessee preferred first appeal, where the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed revenue s appeal against deletion of penalty, observing as under: 5. We have heard the ld. Sr. DR. From the facts noted above, it is clear that the assessee had claimed depreciation on plant and machinery, which was ready for use. Hon ble Delhi High Court in the case of CIT Vs. Refrigeration and Allied Industries (supra) has held that the phrase used for the purpose of the business includes passive user of the assets. For claim of depreciation, two ingredients should be satisfied i.e. the depreciable asset should be owned by the assessee and it should be used for the purpose of business of the assessee. The words used for the purposes of business are capable of a larger and narrower interpretation. If the expression used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee to agitate the matter about claim of depreciation, more so, when the assessee was incurring huge losses and the claim of depreciation at the most would have resulted in carry over unabsorbed depreciation. All these facts about claim of depreciation were on the record filed along with the returns of income and were within the knowledge of the Assessing Officer. Therefore, the penalty should not have been levied on this aspect, as there was proper disclosure of relevant facts. 3.4. (2) (3) -loss on sale of investments; loss on sale of vehicle: It is pleaded that in the original return of income loss was claimed as business loss. During the course of reassessment proceedings it was realized and accepted that the loss on account of sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evade to evade or avoid any tax. The assessee was a sic company and all these claims could at the best reduce the amount of assessed loss with no immediate revenue implications. Proper disclosures having been made in the return of income and being on record, it is pleaded that the concealment penalty cannot be imposed in the case of the assessee. Reliance is placed on Supreme Court judgment in the case of Reliance Petroproducts (supra). 4. Ld. DR, on the other hand, contends that though the assessee was claiming to be within the meaning of Sic Industrial Companies (Special Provisions) Act, during the year the assessee company was under rehabilitation as it had to close its manufacturing unit being polluted industry, as per the directions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn of income and a change in claim of head of income cannot be considered as concealment of particulars of income or furnishing inaccurate particulars of such income. The assessee made a legal claim which was not found to be allowable by the Assessing Officer under the head business loss but the same was allowed as long term capital loss. In these facts and circumstances we are not inclined to hold that the assessee concealed any particulars or furnished inaccurate particulars in this behalf. 5.2. In respect of PF and ESI also the assessee had disclosed in its Chartered Accountant s report that these amounts were not deposited, therefore, assessee itself claimed them to be exfacie not allowable. The only mistake committed by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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