TaxTMI 
TaxTMI 
2017 (9) TMI 724
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....s. 39,324/- levied by AO on account of furnishing inaccurate particulars of income? 2. The appellant craves leave, to add, alter or amend any ground of appeal raised above at the time of the hearing. 2. The brief facts of the case are that the assessee filed its return of income on 01.11.2014 declaring income of Rs. 4,52,50,855/-. Certain additions were made in the assessment order passed u/s. 143(3) of the Income Tax Act, 1961 (hereinafter referred as the Act), which was challenged before the Ld. CIT(A)- XII, who vide order dated 16.8.2010 confirmed the following additions: i) Disallowance on account of additional depreciation. ii) Restriction of the deduction under section 80IB to Rs. 64,54,637/- by excluding the interest earned o....
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..... We have heard both the parties and perused the records available with us, especially the order of the Ld. CIT(A), We find that Section 271(1)(c) of the Act provides for imposition of penalty in the case the AO, in the course of any proceeding under Act, is satisfied that: (i) any person had concealed particulars of his income or (ii) had furnished inaccurate particulars of such income. Further, after insertion of Explanation 1 to Section 271(1)(c), the onus is on the assessee to show that there was no intention of concealment and not on the revenue. Mens rea was considered to be a necessary ingredient for levy of penalty as laid down by the Supreme Court in CIT Vs Anwar Ali (1970) 76 ITR 696. But after the introduction of Explanation....
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....) Primary burden of proof is on the revenue. The statute requires satisfaction on the part of the Assessing Officer. He is required to arrive at a satisfaction so as to show that there is primary evidence to establish that the assessee had concealed the amount or furnished inaccurate particulars and this onus is to be discharged by the department. (iv) The Assessing officer while considering levy of penalty should consider whether the assessee has been able to discharge his part of the burden. He should not begin with the presumption that the assessee is guilty. (v) Though penalty proceedings under the income-tax law may not be criminal in nature, they are still quasicriminal requiring the Department to establish that the assessee has c....
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....It is also pertinent to mention here that after the ruling of Dharamendra Textile Processor, the Hon'ble Supreme Court has come out with the ruling in 2 different case of CIT Vs Atul Mohan Bindal (2009) (317 ITR1) and UOI Vs Rajasthan Spinning & Weaving Mills (2010) (1GSTR66) (SC) and have given a finding that" that for applicability of Section 271(l)(c) the conditions stated therein must exist." Even in the recent decision in the case of CIT(LTU) Vs. MTNL, ITA No.626/2011 dated 10.10.2011, the jurisdictional Delhi High Court has upheld the same view. 5.6 Thus, from this it is very clear that for imposing penalty under Section 271(1)(c), the AO have to be satisfied that: (a) assessee has concealed the particulars of income or (b) asses....
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....nce under Section 32(1)(iia), we find that there is no dispute about the fact that assessee had acquired certain plant and machinery which was owned by the assessee and was also put to use during the current year. The assessee is, therefore eligible to claim depreciation thereon under Section 32. However, the assessee had interpreted the term "installed capacity" to mean "total installed capacity" of all units taken together whereas the AO has taken the 'installed capacity' to mean installed capacity of the eligible units only. The impact of this action of the AO is that the appellant will be entitled for higher WDV on this amount and shall be able to claim higher amount of depreciation allowance in the subsequent years. Thus, in vi....