TaxTMI 
TaxTMI 
2012 (11) TMI 936
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....it was noted from the assessment records of A.Y 2005-06 that assessee has already made claims of such depreciation. In response to a query that why such depreciation should not be disallowed, assessee replied vide letter dated 5-11-08 as under: "While working out the computation for A.Y. 2006-07, the claim of unabsorbed depreciation for A.Y. 2005-06 was inadvertently taken amounting to Rs.403.65 lacs. This error occurred under the erroneous belief that since for A.Y. 2005-06 the MAT income is considered, deduction for depreciation has not been claimed in that and therefore this deduction will be allowed as unabsorbed depreciation." Further, it was found that assessee had claimed that dividend income of Rs.5,78,932/- was exempt ....
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....ions, therefore, assessee made a mistake of claiming the depreciation because of the impression that in view of the MAT provisions depreciation was not allowed in the earlier year. He also referred to the copy of the tax audit report and particularly invited our attention to col.25 of the tax audit report wherein depreciation was shown as carried forward as under: Sr. No. Assessment Year Nature of loss/ allowance [in rupees] Amount as Returned [in rupees] Amount as Assessed [give ref. to Relevant order] Remarks 1. 2005-06 40463485/- 40463485/- 40463485/- (MUMC98101 dt.31 .03.2006) u/s 143(1) of the I. Tax Unabsorbed Depreciation Allowance The mistake happened because of the expert opinion of the audito....
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....ef is more or less a question of fact, which has been decided by the CIT(A) on the basis of the affidavit filed by the counsel. There is no finding of intentional and motivated mistake which might have been resorted to by the assessee. It is not unknown that IT returns are filed through the experts in the IT laws and, therefore, the advise given by the counsel can be acted upon with bona fide belief to be correct. There is no rule of law that the aforesaid issue should have been pressed only before the AO or there was any bar on the assessee not to raise this issue before the appellate authority. The affidavit filed by the counsel of the assessee, has been readily accepted by the CIT(A) as well as by the Tribunal. It is well settled that....
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.... that he was en titled to the said deduction on basis of legal advice given by his counsel; and that he had furnished all details relating to the capital gains along with return of income, it could not be held that there was any malafide intention of the assessee to conceal the income" And in the case of CIT vs. Sidhartha Enterprises [supra], it was held as under: "He1d, dismissing the appeal, that penalty under section 271(1)(c) of the Income-tax Act, 1961, was imposed only when there was some element of deliberate default and not a mere mistake. The finding had been recorded on the facts that the furnishing of inaccurate particulars was simply a mistake and not a deliberate attempt to evade tax. The view taken by the Tribunal could ....