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TMI Blog2012 (12) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, Department of Scientific and Industrial Research, Government of India - technology used by the assessee is the same as was used by him in the past for manufacture of sleepers - though the addition is justified in the quantum proceedings, imposition of penalty on such addition is not warranted – In favor of assessee - ITA 5286/MUM/2010 - - - Dated:- 25-1-2012 - SHRI N.V.VASUDEVAN SHRI R.K.PANDA, JJ. Appellant by : Shri Nilesh Joshi Respondent by : Shri Jagdish ORDER PER N.V.VASUDEVAN, J.M: This is an appeal by the assessee against the order dated 20/4/2010 of CIT(A)-6, Mumbai relating to assessment year 2004-05. In this appeal the assessee has challenged the order of the CIT(A) whereby the CIT(A) conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf by the Secretary, Department of Scientific and Industrial Research, Government of India, such plant or machinery shall be treated as a part of block of assets qualifying for depreciation at the rate of [40] per cent of written down value, if the following conditions are fulfilled, namely: i) the right to use such technology (including any process) or other know-how or to manufacture or produce such article or thing has been acquired from the owner of such laboratory or any person deriving title from such owner; ii) the return furnished by the assessee for his income, or the income of any other person in respect of which he is assessable, for any previous year in which the said machinery or plant is acquired, shall be accompanied b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... organization financed by the Government and, therefore, an institution covered under Rule 5(2) of the IT Rules. In fact by a letter dated 8/12/1997 Government of India, Ministry of Science Technology has issued a certificate to the assessee to enable the assessee to claim accelerated depreciation at 40% but that certificate was valid for a period of three years only and, therefore, the assessee did not file the certificate along with return of income. It was pointed out that the technology used by the assessee was the same as was used in the past. The assessee also pointed out that based on the above certificate assessee got accelerated depreciation for the earlier assessment years. It was the submission of the assessee that the condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as furnished inaccurate particulars of income is upheld. However, there is merit in the without prejudice plea of the appellant that irrespective of the availability of the said certificate for the additions made to the block of assets during the year, accelerated depreciation would be available to the appellant in respect of opening WDV of the said block on which accelerated depreciation had been allowed in the earlier years. The AR of the appellant has furnished a working according to which the excess claim of depreciation, after allowing accelerated depreciation in respect of opening WDV, works out to Rs. 12,17,616/-. The AO is directed to verify the above claim of the appellant and revise the penalty only with reference to the excess de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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