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TMI Blog2016 (7) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... y proceedings initiated in respect of the same cannot be sustained. We accordingly quash the penalty order passed by the Assessing Officer. - Decided in favour of assessee. - I.T.A. No.5866/Del/2013, I.T.A.No. 6068/Del/2013 - - - Dated:- 10-6-2016 - SHRI N K SAINI, ACCOUNTANT MEMBER AND SMT. BEENA A. PILLAI, JUDICIAL MEMB For The Appellant : Shri KVSR Krishna CA ForThe Respondent : Shri Sunil Chander Sharma, CIT DR ORDER PER BEENA A. PILLAI, JM: The present cross appeals have been filed by the assessee as well as Revenue against the order dated 16.08.2013 passed by Ld. CIT(A) XVI New Delhi for the Assessment Year 2005-06 on the following grounds of appeal: A. I.T.A.No. 5866/Del/2013: 1. The Ld CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deleted. 4. The appellant contends that in the above scheme of amalgamation approved by the GOI and RBI, the assessee was mandated to review the assets and take over at WDV as per books or at realizable value. The assets described under furniture fixtures namely glow signs, interiors of the erstwhile bank has nil value and should be written off 100% which has been done by the assessee. Therefore, the claim made by the assessee is bonafide and no penalty should be levied. 5. Without prejudice, whether the assessee would be allowed depreciation on temporary wooden structures @15% or 100% is a debatable issue and cannot be called as a ground for levying penalty. The CIT(A) has failed to appreciate that the depreciation claimed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him vide order dated 30.11.2007 passed under Section 154 of the Act. The sole ground, on which the Assessing Officer exercised the power of rectification is that in the hands of Global Trust Banks Ltd. which had been amalgamated with the assessee bank on 14th August, 2004 vide Government of India notification dated 13th August, 2004, the depreciation was allowed @ 15 till the date of amalgamation. In our considered opinion, this reasoning does not enable the Assessing Officer to exercise the jurisdiction under Section 154 of the Act. There is no specific provision under the provisions of Income Tax Act that the depreciation on the assets acquired pursuant to the scheme of amalgamation should be allowed at the same rate of depreciation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceedings on vapor absorption machine and the Assessing Officer by exercising the power under Section 154 of the Act sought to allow depreciation @ 25% on the ground that the said machine was a part of centralized air condition. The High Court held that such power cannot be exercised as it is a debatable issue which requires the examination of material details, particulars and application of mind. Similarly, the Hon ble Supreme Court in the case of CIT Vs. Hero Cycle Pvt. Ltd., 228 ITR 463 held that the rectification under Section 154 can only be made when a glaring mistake of fact or law committed by the Officer passing the order as apparent from the record. Rectification is not possible when question is debatable. Moreover, a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessing officer u/s 271(1)(c) of the Act on account of wrong claim of brought forward losses/unabsorbed depreciation. 1.1 On the facts in the circumstances of the case, the Ld. (IT (A) has erred in not appreciating the fact that the addition was confirmed by the first appellate authority. 1.2 On the facts in the circumstances of the case, the Ld. (IT (A) has erred in not appreciating the fact that in quantum appeal the first appellate authority has well established the factor that the assessee had misappropriated with the figures at the time of filing of return. 4. The revenue has preferred this appeal before us against the penalty being deleted in respect of claim being disallowed relating to deprecation on ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion that penalty u/s 271 (1)( c) is not imposable upon the appellant in respect of disallowance of excess set off of losses of ₹ 7,13,13,797/- on account of additions made in the hands of EGTB. 4.2 Ld. D.R. submitted that the penalty levied must be confirmed as the addition has been confirmed by the first appellate authority in its order u/s 143(3) of the Act. 4.3 On the contrary, Ld. A.R. submitted that Ld. CIT(A) in the impugned order has held that the disallowance made by the Ld. A.O. was in respect of excess set off of loses being on account of addition made in the hands of assessee. He submitted that Ld. CIT(A) has held that such disallowance cannot be considered as concealment of particulars of income or furnishing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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