TaxTMI 
TaxTMI 
2019 (8) TMI 925
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.... on facts and in law the learned CIT(A) erred in justifying the levy of penalty U/s 271(1)(c) explanation 1 of I.T. Act by the AO without any evidence, cogent findings of concealment of income or filing of inaccurate particulars by the assessee. 2. The learned CIT (A) erred in relying on Commissioner of Income-tax v. Harparshad and company Ltd (328 ITR53) and in holding that the penalty U/s 271(1)(c) is automatic civil liability for loss of revenue without proof of any false/bogus/fictitious claim of deductions or allowances or filing of inaccurate particulars for concealment of income by the assessee. 3. The learned CIT (A) erred in relying on CIT v. Escorts Finance Ltd (328 ITR 44) wherein the penalty was justified on the basis of claim of the company which was ex facie bogus whereas the facts of the assessee's case the claim was not established or proved as ex facie bogus or proved false but were based on Legally sound case of the company in support of its claim. 4. On facts in circumstances of the case and in law the CIT (A) erred in rejecting the assessee's submissions for non levy of penalty based on the authorities of various legal decisions of Hon'ble High....
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....absence of the assessee. This appeal was filed by the assessee before the tribunal on being aggrieved by the appellate order dated 09.03.2017 passed by learned CIT(A) confirming levying of penalty on the assessee u/s 271(1)(c) of the 1961 Act. It is well established that the litigant has to be vigilant as to its rights and duties while pursuing its disputes with the Courts and any delay ,latches and lapses on part of the litigant without having any sufficient cause shall be to the determinant of the litigant. 4. The brief facts of the case are that the assessee has earned income from house property . The assessee has set off business losses to the tune of 19,71,729/- and un-absorbed depreciation of Rs. 23,63,091/- against the aforesaid income from house property. The AO did not allow the said set off of business loss and unabsorbed depreciation against income from house property, as there was no business activity conducted by the assessee during the year under consideration and hence as per the AO , the business losses and un-absorbed depreciation cannot be set off against income from house property , which set off was ultimately denied by the AO vide assessment order dated 26.11.....
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....tested in appeal by the appellant. In the case of Commissioner of Income-tax v. Harparshad and Company Assessment year 2004-05 Ltd. (328 ITR 53), it has been held by the Hon'ble Delhi High Court that the findings given in assessment proceedings are relevant and have probative value. Where the assessee produces no fresh evidence or presents any additional or fresh circumstance in penalty proceedings, he would be deemed to have failed to discharge the onus placed on him and the levy of penalty could be justified. Even if there is no concealment of income or furnishing of inaccurate particulars, but on the basis thereof the claim which is made is ex facie bogus, it may still attract penalty provision, it has further been observed that the Explanations appended to section 271(1)(c) of the Act entirely indicate the element of strict liability on the assessee for concealment or for giving inaccurate particulars while filing return. The object behind enactment of section 271(1)(c) read with the Explanations indicates that the section has been enacted to provide for a remedy for loss of revenue. The penalty under that provision is a civil liability. Willful concealment is not an essent....
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.... vide common order dated 04.02.2016 passed by tribunal and prayers were made to uphold penalty levied by the AO u/s 271(1)(c) of the 1961 Act which was later confirmed by learned CIT(A). 8. We have considered the contentions of learned DR and perused the material on record . There is only one effective grievance of the assessee in its appeal which is with respect to penalty of Rs. 13,17,829/- levied by the AO u/s 271(1)(c) of the 1961 Act which was later confirmed by learned CIT(A) . We have observed that the assessee has earned income from house property to the tune of Rs. 67,50,000/- which was offered for taxation under the head 'Income from House Property'. The assessee had received above rent for the period from June 2009 to March 2010 with respect to its office unit No. 8, admeasuring 5000 sft. built up area on 2nd Floor, C-Wing, Laxmi Towers at Bandra Kurla Complex, Mumbai. The said property is the only property held by the assessee and this property had remained vacant for 2 months viz. April and May 2009. The AO adopted fair market value u/s 23(1)(a) of Rs. 82,62,000/- for previous year relevant to impugned assessment year with respect to aforesaid property to compute inco....
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....inding of fact has attained finality . The decision of Hon'ble Supreme Court in the case of Raj Dadarkar & Associates v. ACIT reported in (2107) 394 ITR 592(SC) which elaborately discussed the chargeability of income to tax under the head 'Income from House Property' also rebut the aforesaid contention of the assessee that letting out of the commercial office is business of the assessee. The assessee was fully aware that there was no business conducted by it during the entire previous year and its expenses as well deprecation on assets can neither be allowed as business deduction nor it can be allowed as set off against other incomes. Provisions of Section 37(1) and Section 32 are unambiguous on this aspect which requires business user, and relevant provisions are extracted below: "32. (1) [In respect of depreciation of- (i) buildings, machinery, plant or furniture, being tangible assets; (ii) know-how, patents, copyrights, trade marks, licences, franchises or any other business or commercial rights of similar nature, being intangible assets acquired on or after the 1st day of April, 1998, owned, wholly or partly, by the assessee and used for the purposes of the business or....