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TMI Blog2018 (2) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... al is being benefitted by the claiming wrong depreciation. This is a bonafide mistake made by the assessee without any intention to evade tax. Moreover, the assessee has already shown losses for the previous years. The assessee has submitted reasonable explanation on the basis of the report of a qualified auditor. - Decided in favour of assessee - ITA Nos. 5792 & 5793/DEL/2014 - - - Dated:- 23-1-2018 - Shri B. P. Jain, Accountant Member And Shri Sudhanshu Srivastava, Judicial Member Assessee by : Shri Arvind Kumar, Adv Revenue by : Shri Amit Jain, Sr. DR ORDER Per B. P. Jain, Accountant Member These two appeals filed by the Revenue are directed against the different orders dated 29.08.2014 of Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right and the assessee was not entitled to claim depreciation on the dwelling units of the members. Therefore, after recording reasons for reopening of the case, the Assessing Officer issued a notice u/s 148 on 26.03.2012 and served the same on the appellant. In response to the notice, the assessee submitted its return of income on 12.03.2013 .During the course of assessment, the Assessing Officer claim of depreciation of ₹ 45,99,053/- on the dwelling units of and assessed the income of the assessee at the loss of ₹ 7,77,350/- vide order u/s 143(3)/147 of the Act dated 18.03.2013. The Assessing Officer also initiated penalty proceedings u/s 271(1)(c) read with section 274 of the Income Tax Act, for furnishing inaccurate particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 22.1.2.2008. Even after that, the appellant has not filed its revised return for the successive years. Thus, the assessee was habitual in claiming depreciation on the units belonging to its members and therefore the explanation of the appellant was not satisfactory. Thereafter, the Assessing Officer imposed penalty of ₹ 15,45,282/- u/s 271(1)(c) of the Income Tax Act, on the assessee for furnishing inaccurate particulars of income vide order dated 20.09.2013. The ld. CIT(A) deleted the penalty for the reasons mentioned in his order. Aggrieved by the action of the ld. CIT(A), the assessee is in appeal before the Tribunal. 6. We have considered the rival arguments made by both the sides, perused the orders of the A.O and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the relevant material relating to claim of deprecation were found to be disclosed in the return of income. The claim of deprecation made by the assessee was based on the report of the auditor. 8. We find it relevant to reproduce the findings of the ld. CIT(A) on this issue, which is reproduced as below: The Assessing Officer also noticed that in the relevant assessment year 2007-08, the appellant has also claimed similar depreciation on the whole building. Therefore, the Assessing Officer initiated proceedings u/s 147 of the Income Tax Act and disallowed the claim of depreciation in the assessment year 2007-08 also. However, in the relevant assessment year 2007-08, the Assessing Officer imposed penalty u/s 271(1)(c) of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f depreciation was made by the Assessing Officer for the immediately preceding assessment year 2006-07, but no penalty proceedings was initiated or levied by the Assessing Officer. There is no change in the facts and circumstances of the case in the relevant assessment year 2007-08, despite the Assessing Officer preferred to levy penalty u/s 271(1)(c) on the charge of furnishing inaccurate particulars of income in the relevant assessment year 2007-08. No reason has been explained by the Assessing Officer for the change of his stand for the relevant assessment year 2007-08 for imposing penalty. Moreover, it is a case where no individual is being benefited by claiming wrong depreciation. Thus, in my opinion, there is a bonafide mistake made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot bonafide or bogus. It is worthwhile to mention here that in the case of Amruta Organics Pvt Ltd. vs DCIT (ITA No 1121/PN/2011) the Hon'ble ITAT, Pune in a similar case has deleted the penalty u/s 271(1)(c) of the Income Tax Act. Relying upon the aforesaid decision of the Hon'ble ITAT, Pune and considering the entirety of the circumstances, I am of the considered opinion that the impugned disallowance on account of depreciation was only a bonafide mistake and therefore does not invite the provisions of section 271(1)(c) of the Income Tax Act. Therefore, the assessee Assessing Officer is directed to delete the impugned penalty of ₹ 15,45,282/-. 9. In such circumstances, penalty u/s 271(1)(c) of the Act cannot be levied a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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