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TMI Blog2012 (9) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... it cannot be said that assessee had furnished inaccurate particulars of income. It is a matter of opinion and courts had given different opinions in respect of such items at different times. Further, mere non filing of appeal by assessee against the additions made by AO cannot be said to be admission by assessee of having submitted wrong claim. In view of aforesaid, penalty is directed to be deleted – Decided in favor of assessee. - I.T.A. No.68/Del/2012 - - - Dated:- 27-7-2012 - SHRI I.C. SUDHIR AND T.S. KAPOOR, JJ. Appellant by : Shri Kanchan Kaushal, Advocate. Respondent by : Smt. Veena Joshi, Sr. DR. ORDER PER TS KAPOOR, AM: This is an appeal filed by the assessee against the order of Ld CIT(A) da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely because the Assessing Officer had held that the expenses incurred were on substantial repairs, the same were capital in nature, therefore, a claim by the appellant as revenue necessitated of penalty. 8. That the ld CIT(A) erred in confirming levy of penalty by invoking explanation 1 to sec. 271(1)(c) of the Act, even though circumstances mentioned in the said explanation were not attracted in appellant s case. 9. That the CIT(A) erred in holding that the appellant s case was similar to that of the assessee in the case of CIT v. Zoom Communication P. Ltd. 327 ITR 510.(Del.). 10. That the CIT(A) erred in not following the decision of the Supreme Court in the case of CIT v. Reliance Petroproducts P. Ltd. 322 ITR 158 (SC), even thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Supreme Court that after the insertion of Explanation in section 271(1)( c), the rule regarding burden of proof enacted in CIT v. Anwar Ali 76 ITR 696 (SC) was no longer valid and Explanation has the effect of shifting the burden of proof from revenue to assessee. It was held that Explanation raises a presumption of concealment of income against the assessee and the onus of proof to rebut the presumption lies on the assessee and if he fails to discharge the onus presumption will become finding and it will be open for the authority to levy the penalty. The Assessing Officer relied in a number of cases along with jurisdictional Hon'ble Delhi High Court in the case of CIT v. Zoom Communication Pvt. Ltd. wherein it was held that the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to roof and covered with false ceilings. iii) That during the year the seating arrangements in the office were re-arranged for better co-ordination and efficient working and this necessitated relocating and relying various cables and ducts along with their conduits as well as the air conditioning ducts etc. This resulted in cutting of the walls and removal of the existing false ceilings and once it is done, the walls had to be restored and repainted and POP finish of walls in these days is an accepted standard of wall finish. iv) That when the floors are cut to lay the conduits for the electrical, net working and telephones lines, the floors are also required to be repaired by placing floor tiles and the building has an area of 20,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot sustainable in law by itself. 5. The Ld Assessing Officer after hearing the submissions of the assessee did not agree with the contentions of assessee and relied upon CIT v. Zoom Communication Pvt. Ltd. 327 ITR 510 wherein the case of CIT v., Reliance Petro Products Pvt. Ltd. (supra) was distinguished. The relevant portion of Ld CIT(A) s order is reproduced below:- The case of the appellant company is similar. However, from the nature of the expenses it is clear that the expenses are clearly capital in nature but the appellant in spite of its untenable and unsustainable claim has debited these expenses to the P L A/c. The appellant has tried to substantiate its claim not only at the assessment stage but also at the appellate level ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon number of cases decided by various Courts in which Courts had taken the view that expenses on improvement on lease hold property are allowable business expenditure. The Ld AR argued that disallowance made by Assessing Officer merely on account of difference of opinion cannot attract provisions of section 271(1)( c) of the Act. Reliance was placed on the judgments of various courts in the following cases:- 1. HM Udyog Pvt. Ltd. 211 CTR 543. 2. CIT v. Reliance petro Products Pvt. Ltd. 322 ITR 158 (SC). 8. The Ld DR, on the other hand, argued that there was wrong claim made by the assessee and that is why the assessee has not filed quantum appeal therefore he argued that penalty was leviable. 9. We have heard the rival submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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