2022 (6) TMI 746

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....ing, it was seen that the assessee had claimed depreciation of Rs.8,38,98,017. When the assessee was asked as to why rental income should not be added. The assessee submitted that the building is dilapidated and unsafe for occupation. Again when asked why depreciation should not be disallowed, the assessee submitted that the building was being used for business purposes for conducting meetings of Board of Directors. Ld AO observed that a meeting of Board of Directors cannot be held in a building which by the assessee's own submissions "is unsafe to occupy". Ld AO held that it is very clear that the assessee is misrepresenting itself. Ld AO also observed that from perusal of sale deed dated 23/08/2006 by which various parties had sold their ....

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....se of concealment of the income amounting to Rs. 26,47,24,351/- and assessee was held iable for penalty u/s 271(1)(c). 2.3 However, Ld. CIT(A) had set aside the penalty levied by Ld. AO with the following finding :- " It has likewise been held in decisions of various High Courts that where facts are fully disclosed, penalty under section 271(l)(c) of IT Act cannot be imposed for furnishing of inaccurate particulars of income. The records/ orders also suggests that it was, on the basis of complete information/ documents filed by the appellant, that the assessing officer disallowed the claim of depreciation based on the difference of opinion regarding interpretation of section 32/36(l)(iii) of IT Act. It is settled legal position that no p....

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....tation or that the penalty was levied in absence of satisfaction recorded by Assessing officer. 3. Now, the revenue has approached the Tribunal raising following grounds :- 1. Whether in facts and circumstances of the case, the Ld.CIT(A) is legally justified in deleting the penalty of Rs. 8,99,79,806/- u/s 271(1)(c) of the Income Tax Act (the Act) Imposed by the Assessing Officer (the AO) by ignoring finding of facts recorded by the AO that the assessee had made patently wrong claim of depreciation on residential property and patently wrong claim of deduction of interest which was capitalized in precededing assessment year as revenue expenditure? 2. Whether in facts and circumstances of the case and in law, the Ld. CIT(A) is justified ....

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....71(1 )(c) of the Act imposed by the Assessing Officer by ignoring the fact that the assessee had taken a chance by making a patently incorrect and unsubstantially claim and the decision of Hon'ble jurisdictional High Court in case of CIT Vs Zoom communication Pvt. Limited (2010) 327 ITR 510, CIT vs NG Technologies Limited (2015)370 ITR 7, CIT Vs Escorts Finance Limited (2010) 328 ITR 44 and CIT Vs Harparshad and Company Limited (2010) 328 ITR 53? 7. That the appellant craves leave to add, amend, alter or forgo any ground/(s) of appeal either before or at the time of hearing of the appeal. 4. Heard and perused the record. 5. On behalf of the assessee in application under Rule 27 of the Income Tax Act (Appellate Tribunal) Rules, 1963 has ....

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....ric indication as to for which specific violation the notice is issued and reliance in this regard is placed on the judgment :- "1. Pr. CIT Vs. Sahara India Life Insurance Company Ltd. , ITA No. 475 of 2019 (Delhi HC) 2. CIT Vs. Virgo Marketing P. Ltd., [2008] 171 Taxman 156 (Delhi) 3. CIT Vs. Veerabhadrappa Sangappa & Co. (SLP Dismissal) ,SLP (C) No. 13898/2014 (SC) 4. CIT vs. Manjunatha Cotton & Ginning Factory [2013] 359 ITR 565 (Karnataka) 5. Avinash Kumar Setia Vs. DCIT , ITA No. 1814/D/2015 (ITAT Delhi) 6. Shri Harmendar Singh Vs. DCIT, ITA No. 2627/D/2017 and others (ITAT Delhi) 7. Bengali Sweet Centre Vs. ACIT , ITA No. 2068 & 2069/D/2014 (ITAT Delhi) 8. Deloitte Haskins and Sells vs. DCIT, ITA No. 675/Del/2015 9. ....

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..... At the same time in the body of assessment order while making addition in para no. 2.15 & 3.3 the AO had mentioned that assessee company had furnished "inaccurate particulars" while in the notice dated 25.02.2013 as reproduced in the penalty order dated 09.02.2015 itself there was no specific indication as to if the levy of penalty is called upon to be explained for concealment of income or furnishing of inaccurate particulars. 10. Further it can be observed that on page no. 2 para 2 of the penalty order, the Ld. AO observed that "also, during the present penalty proceedings, the AR of the assessee has not brought any evidences so as to counter the additions made therein the assessment order. Thus, the assessee has not discharged the onu....