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TMI Blog2011 (5) TMI 1017X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Assessing Officer without appreciating the findings of the ITAT that the expenditure of ₹ 20,26,181/- claimed to be incurred on temporary structure was held to be a permanent construction and thus furnished inaccurate particulars and that the depreciation was allowable @10% instead of 100% wrongly claimed by the assessee. 3. In this case assessee had claimed depreciation @ 100% on sheds amounting to ₹ 41,36,577/-. The Assessing Officer was of the view that the expenditure cannot be said to be related to temporary sheds. Accordingly, he restricted the depreciation on these sheds @ 10%. The detail of this expenditure was that ₹ 20,26,181/- had been incurred at Kolkata Regional Office and ₹ 10,75,297/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the disallowance of ₹ 2,62,637/-. On the addition on account of temporary structures amounting to ₹ 41,37,577/-, after assessment under section 143(3), the Ld. Commissioner of Income Tax (Appeals) has allowed deduction @100% on addition of ₹ 20,89,896/-. The same issue was decided by ITAT, New Delhi in the case of the assessee itself for the assessment year 1998-99 also although the addition for the year under appeal is confirmed by the Tribunal. However, these are debatable points and provisions of section 271(1)(c) are not applicable. Hon ble Delhi High Court in the case of C.I.T. vs. Aimil Ltd. Others 229 CTR 418 has decided that employees contribution to provided fund, if paid before the due date of filing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld in various decisions that penalty provisions of section 271(1)(c) cannot be invoked on the issues where two opinions are possible. In the case of C.I.T. vs. Bacardi Martini India Ltd. 288 ITR 585, Hon ble Delhi High Court has held that merely because there is difference of opinion for allowing or disallowing the expenditure between the assessee and the Assessing Officer, it cannot be said that assessee had intention to conceal the income. As the issue involved is a debatable issue, hence the Assessing Officer was not justified in imposing penalty u/s 271(1)(c) of the Act and the same is, therefore, directed to be deleted. 7. Against the above order the Revenue is in appeal before us. 8. We have heard the rival contentions i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the expenditure between the assessee and the Assessing Officer , it cannot be said that the assessee had intention to conceal the income. 10. We would like to refer to the Hon ble Apex Court decision in the case of CIT vs. Reliance Petro Products Ltd. in Civil Appeal No. 2463 of 2010. In this case vide order dated 17.3.2010 it has been held that the law laid down in the Dilip Sheroff case 291 ITR 519 (SC) as to the meaning of word concealment and inaccurate continues to be a good law because what was overruled in the Dharmender Textile case was only that part in Dilip Sheroff case where it was held that mensrea was a essential requirement of penalty u/s 271(1)(c). The Hon ble Apex Court also observed that if the contention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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