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TMI Blog2013 (4) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax (Appeals). - Decided against Revenue. - I.T.A No. 203/Kol/2012 - - - Dated:- 19-4-2013 - Shri K. K. Gupta Shri Mahavir Singh, JJ. For the Appellant : Shri J. Khan, Sr. DR For the Respondent : Shri Sunil Surana ORDER Mahavir Singh (Judicial Member).- This appeal by the Revenue is arising out of the order of the Commissioner of Income-tax (Appeals)-VIII, Kolkata, in Appeal No. 43/Commissioner of Income-tax (Appeals)-VIII/ Kol/09-10, dated November 18, 2011. The assessment was framed by the Assistant Commissioner of Income-tax, Circle-9, Kolkata, under section 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) for the assessment year 2006-07, vide his order dated November 5, 2008. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sors [2008] 306 ITR 277 (SC) on which the then Assessing Officer relied upon. 3. We have heard rival submissions and gone through the facts and circumstances of the case. The brief facts are that the assessee filed its return of income on March 31, 2007 and assessment was framed under section 143(3) of the Act, vide order dated November 5, 2008 by the Assessing Officer. The Assessing Officer while completing assessment made disallowance of depreciation at ₹ 3,80,692 on the ground that machinery were not put to use during the year. The Assessing Officer further allowed additional depreciation on xerox machine and also payment of provident fund under section 43B of the Act. The Assessing Officer initiated penalty proceedings and als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to truth or erroneous. We must hasten to add here that in this case, there is no finding that any details supplied by the assessee in its return were found to be incor rect or erroneous or false. Such not being the case, there would be no question of inviting the penalty under section 271(1)(c) of the Act. A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the return cannot amount to the inaccurate particulars. It was tried to be suggested that section 14A of the Act specifically excluded the deductions in respect of the expenditure incurred by the assessee in relation to income which does not form par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty under section 271(1)(c). That is clearly not the intendment of the Legislature. In this behalf the observations of this court made in Sree Krishna Electricals v. State of Tamil Nadu [2009] 23 VST 249 as regards the penalty are apposite. In the aforementioned decision which pertained to the penalty proceedings under the Tamil Nadu General Sales Tax Act, the court had found that the authorities below had found that there were some incorrect statements made in the return. However, the said transactions were reflected in the accounts of the assessee. This court, therefore, observed (page 251) : 'So far as the question of penalty is concerned the items which were not included in the turnover were found incorporated in the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... changed by the assessee. We, thus, find that the learned Tribunal below committed sub stantial error of law in affirming the order of imposition of penalty which is not in conformity with the view taken by the Supreme Court in the abovementioned matter. We find that the issue is exactly similar what was before the hon'ble Calcutta High Court in the case of Usha Martin Ventures Ltd. In the facts of the present case there is no doubt the claim of depreciation by the assessee was wrong but the assessee has filed complete particulars qua these assets and also in the claim of depreciation in audit report and in the return of income and nothing was concealed from the Department. In such circumstances, respectfully following the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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