2011 (5) TMI 895

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....Respondent : Md. Nizumuddin, Advocate ORDER This appeal is at the instance of an assessee and is directed against order dated 18th November, 2009 passed by the Income Tax Appellate Tribunal "C" Bench, Kolkata in ITA No.2039/Kol/2008 for the Assessment Year 2003-04 thereby dismissing an appeal preferred by the assessee against an order of the Commission of Income Tax (Appeals), Kolkata dated ....

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....counsel appearing on behalf of the Revenue, we find that for the computation of the assessment the assessee on the basis of report given by the auditor in the Tax Audit Report claimed depreciation from the house property, although the same was a rented one. Subsequently, when such mistake was detected, the assessee filed a revised return rectifying such mistake in response to a notice under Sectio....

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....return nor is it a case where in spite of demand of the Assessing Officer to produce evidence in support of claim of depreciation it refused to produce such document. It appears that this is a case where claim of depreciation, which is a mixed question of law and fact, was made on the basis of auditor's report which was not found to be tenable because of the fact that the house property was a tena....

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....that the learned Tribunal below committed substantial error of law in affirming the order of imposition of penalty which is not in conformity with the view taken by the Supreme Court in the abovementioned matter. We, thus, set aside the order passed by the Tribunal below by answering the formulated question in the affirmative and against the Revenue by quashing the order of penalty. We, thus....