2011 (4) TMI 1482

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....Senior Departmental Representative. The crux of arguments on behalf of the assessee is that the penalty was levied by the Assessing Officer broadly on the disallowance made u/s 80IA of the Act in respect of profit and gains of a unit for power generation named "Kalani Wind-farm" on account of alleged excess claim of depreciation of ₹ 73,21,324/- and interest of ₹ 2,02,408/-. It was contended that the return was filed along with the necessary documents and reply to the queries raised by the Assessing Officer were duly made. Our attention was invited to page 24 of the paper book. It was submitted that everything was disclosed at the time of filing of return and neither any income was concealed nor inaccurate particulars were furni....

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....f ₹ 2,02,408/-. No order was passed u/s 154/155 of the Act. Subsequently, notice u/s 148 was issued to the assessee on the ground of excessive claim of depreciation. The assessment u/s 143(3)/148 was completed, determining the income at ₹ 1,07,55,343/- on 23.3.2006. Penalty was imposed u/s 271(1)(c) on the ground that the assessee claimed excess depreciation. Now, question arises, when everything was disclosed even by making a wrong/excess claim, whether penalty can be imposed u/s 271(1)(c) of the Act. The obvious reply is No because penalty u/s 271(1)(c) of the Act is made for concealment of income or furnishing inaccurate particulars. We have perused the director's report of the assessee company wherein financial results have ....

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.... India vs. Dharmendra Textiles Processors (306 ITR 277) (SC) and various other decisions as available at page 159 of the order affirmed the decision of the Hon'ble Gujrat High Court dated 23.10.2007 (Tax Appeal No.4419/2007) clearly held that merely because assessee claimed expenditure, which claim was not accepted or was not acceptable to the Revenue, that by itself would not attract penalty u/s 271(1)© of the Act. The expression "has concealed the particulars of income" and "has furnished inaccurate particulars of income" have not been defined either in sec. 271(1)© or elsewhere in the Act. One thing is certain that these two circumstances are not identical in details although they may lead to same effect, namely, keeping of a c....