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TMI Blog2015 (5) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... e claim, it becomes vulnerable for penalty to the extent that taxable income get reduced." 3. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has ignored to take into account that the assessee has claimed incorrect depreciation and deduction in the account which is vulnerable for penalty." As stated earlier,in the other years also identical grounds have been filed-the only difference is of penalty amount involved.Details of dates of filing of returns,incomes returned,dates of assessment,assessed incomes, dates of orders of the CIT(A)can be summarised as under : Return filed on Returned Income (Rs.) Assessed income (Rs.) Date of penalty order Penalty levied (Rs.) 2004-05 29.10.2004 (-)545,69,50,845/- (-)495,50,53,512/- 28.03.2012 Rs. 11,07,97,349/- 2005-06 29.10.2005 (-)462,08,87,813/- (-)407,16,42,297/- 28.03.2012 Rs. 16,64,85,732/- 2006-07 30.11.2006 (-)327,75,38,678/- (-)282,86,44,115/- 28.03.2012 Rs. 6,44,83,352/- 2007-08 29.10.2007 (-)241,20,87,391/- (-)293,51,23,940/- 28.03.2012 Rs. 10,11,53,988/- Assessee-company is running railway services and railway construction line. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expenditure that it was opined that there was no violation in compliance in AS-6 and AS-10. About repair/maintenance expenses the assessee argued that most of the items were components and parts of machinery having life span of only one year that major portion of the assessee's asset was unique in nature, that the assessee had not concealed nay particular of income or had furnished any inaccurate particulars of income, that the additions were based on some ambiguous method of accounting. After considering the submission of the assessee that AO held that in the quantum appeal proceedings the First Appellate Authority (FAA) had confirmed the additions/disallowances made by the AO, that the assessee had failed to recognise accrued income on its cost plus project while claiming the cost of deduction, that the practice followed by the were against the principles of accounting and taxation, that assessee's claim of deduction of capital expenditure on items costing upto Rs. 1.00 lac was untenable that the rate of depreciation, allowable u/s. 32 of the Act were prescribed in the Income tax Rules, that the assessee had no authority or discretion to claim 100% depreciation in total contraven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of C&AG that the comments of the C&AG about the expenditure of 33 crores were also dropped. It was also contended that while passing the assessing order the AO had not recorded the finding that the assessee had furnished inaccurate particulars of income that all details/ evidences were and explanations were duly furnished during the course of assessment and penalty proceedings, that additions/disallowances made in the assessment order were merely change of opinion and did not constitute a basis for levying concealment penalty. The assessee relied upon the case of Reliance Petroproducts Ltd(322ITR128) and Aditya Birla ( 2012-TIOL692-HC-MUM-IT). After going through the submissions of the assessee and the penalty order of the AO, the FAA held that the additions/disallowances made in the assessment order and confirmed by the FAA in quantum proceedings did not suo moto attracted levy of penalty u/s. 271(1)(c) of the Act, that the assessee was a public limited company formed in pursuance of the agreement entered into Ministry of Railway and States of Maharashtra, Goa, Karnataka and Kerala that the assessee had offered the managerial fee in the subsequent years when it was received that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ped the comments by it about the assessee that the FAA in penalty proceedings held that the assessee had not concealed its particulars of income or had furnished inaccurate particulars of income. We find that the AO had made additions/disallowances on four counts and first among them is about income accrued to the assessee on account of OWK Tunnel Project. The FAA found that because of the dispute going with the Govt. of AP the assessee was not sure as to how much additional compensation would be given to the sub contractor or when it would be paid. In these circumstances if the assessee had showed the income in the year of receipt it cannot be said that it had concealed its particulars of income. It is not the case of the AO that the assessee had not disclosed the fact of ongoing dispute with the AP Govt. or the fact that amount was to be paid to sub -contractor. Income arising from the other projects had been shown by the assessee in the return so there was no justification of invoking the provisions of section 271(1)(c)of the Act. As far as the disallowance of certain item and capitalization of those expenses is concerned we are of the opinion that no concealment was involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim tantamount to furnishing inaccurate particulars. There can be no dispute that everything would depend upon the return filed by the assessee because that is the only document where the assessee can furnish the particulars of his income. When such particulars are found to be inaccurate, the liability would arise. To attract penalty, the details supplied in the return must not be accurate, not exact or correct, not according to the truth or erroneous. Where there is no finding that any details supplied by the assessee in its return are found to be incorrect or erroneous or false there is no question of inviting the penalty under section 271(1)(c) A mere making of a claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such a claim made in the return cannot amount to furnishing inaccurate particulars. We do not find any legal or factual infirmity in the order of the FAA. Therefore confirming the order of the FAA,we decide effective ground of appeal against the AO. ITA Nos. 5368 & 5369/Mum/2013 and ITA No.5370/Mum/2013/ AY.s.2005-06 to 200708(3 years): 6. The facts and circumstances of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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