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TMI Blog2023 (12) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... oss during the year under consideration - CIT(A) deleted penalty levy - HELD THAT:- CIT(A) had relied on the decision of Reliance Petro Products Pvt. Ltd. [ 2010 (3) TMI 80 - SUPREME COURT] where it has held that furnishing inaccurate claim of expenditure would not amount to giving inaccurate particulars of such income. Assessee has relied on various other decisions which have reiterated the proposition that the claim of higher depreciation would not amount to concealment of income. It is also observed that the decision of the Hon'ble Jurisdictional High Court in the case of CIT vs. Somany Evergreen Knits Ltd. [ 2013 (4) TMI 154 - BOMBAY HIGH COURT] has held that excess claim of depreciation was a bona fide mistake on the part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and without prejudice has challenged the impugned order that the assessee falls within section 270A(6)(a) instead of section 270A(7) of the Act. 3. The brief facts are that the assessee was engaged in the business of solar power generation and had filed its return of income dated 31.10.2017 and subsequently filed revised return of income dated 30.03.2018, declaring total loss at Rs. (-)1255,55,66,434/-. The assessee s case was selected for complete scrutiny and notice u/s. 143(2) and 142(1) were issued and served upon the assessee. 4. The ld. A.O. sought for the details of any other deduction claimed in the schedule business/profession in the return of income during the assessment proceeding for which the assessee submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal before the ld. CIT(A) who vide order dated 31.03.2023 deleted the impugned penalty for the reason that the assessee s claim of excess depreciation was a bona fide mistake and that there was no mens rea on the part of the assessee to suppress any material fact for the purpose of avoiding tax. The ld. CIT(A) relied on the decision of the Hon'ble Apex Court in the case of CIT vs. Reliance Petro Product Ltd. 322 ITR 158 (SC). 6. The Revenue is in appeal before us challenging the order of the ld. CIT(A) deleting the impugned addition and the assessee is in cross objection challenging the notice of the ld. A.O. on the ground that the ld. A.O. has failed to specify the relevant clause of sub section (2) of section 270A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report its income and that penalty u/s. 270A of the Act was not to be levied on the assessee. The ld. AR relied on the ld. CIT(A) s order, deleting the impugned penalty levied by the ld. A.O. The ld. AR further contended that the ld. A.O. has failed to specify the relevant clause of section 270A(2) of the Act for which penalty was levied and stated that the assessee s case would fall u/s. 270A(6)(a) of the Act where the ld. CIT(A) being satisfied by the Explanation of the assessee that it was a bona fide mistake. The ld. AR relied on the various decisions including the Hon'ble Apex Court decision in the case of CIT vs. Reliance Petro Products Pvt. Ltd. [2010] 322 ITR 158 (SC). 9. We have heard the rival submissions and perused t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sub-section (1) of section 143; (b) the income assessed is greater than the maximum amount not chargeable to tax, where no return of income has been furnished 74[or where return has been furnished for the first time under section 148]; (c) the income reassessed is greater than the income assessed or reassessed immediately before such reassessment; (d) the amount of deemed total income assessed or reassessed as per the provisions of section 115JB or section 115JC, as the case may be, is greater than the deemed total income determined in the return processed under clause (a) of sub-section (1) of section 143; (e) the amount of deemed total income assessed as per the provisions of section 115JB or section 115JC is greater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of CIT vs. Reliance Petro Products Pvt. Ltd. (supra) where it has held that furnishing inaccurate claim of expenditure would not amount to giving inaccurate particulars of such income. The assessee has relied on various other decisions which have reiterated the proposition that the claim of higher depreciation would not amount to concealment of income. It is also observed that the decision of the Hon'ble Jurisdictional High Court in the case of CIT vs. Somany Evergreen Knits Ltd. [2013] 35 taxmann.com 529 (Bom) has held that excess claim of depreciation was a bona fide mistake on the part of the assessee which attracts no levy of penalty. 13. By respectfully following the above said decision, we deem it fit to hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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