,   "" 
  IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH, MUMBAI

      BEFORE S/SHRI I.P. BANSAL, (JM) AND B.R.BASKARAN (AM)
  .. ,      .. ,     


                ./I.T.A. No.6510/Mum/2012
             (   / Assessment Year : 2004-05)


 Bunge India Private Limited,    / Jt.Commissioner of Income Tax
 B-401 & 501, Business square,
                                 Vs. ­(OSD) 8(1),
 Andheri Kurla road,                   Room No.210, 2nd Floor,
 Chakala,
 Andheri (E),
                                       Ayakar Bhavan,M.K.Road,
 Mumbai-400093                         Mumbai-400020
      ( /Appellant)              ..    (    / Respondent)


         . /   . /PAN/GIR No. :AAACG7034K



           / Assessee by:             Shri V Mohan

             / Revenue by::           Shri Premanand J


                  / Date of Hearing
                                                  :6.1.2015
            /Date of Pronouncement :              18.2.2015


                               / O R D E R

Per B.R.BASKARAN, Accountant Member:

      The assessee has filed this appeal challenging the order dated 01-

08-2012 passed by Ld CIT(A)-16, Mumbai confirming the penalty of

Rs.62,83,900/- levied by the AO u/s 271(1)(c) of the Act for the

assessment year 2004-05.
                                                              ITA No.6510/M/12
                                    2







2.      We heard the parties and perused the record. The AO noticed that

the assessee has claimed depreciation @ 40% on Plant and Machinery,

where as the applicable rate of depreciation was only 25%. Similarly, the

AO noticed that the assessee has claimed depreciation @ 10% on land and

development works, where as the Act does not provide depreciation on

land.      After confronting these mistakes, the AO recomputed the

depreciation and accordingly disallowed excess claim and also levied

penalty u/s 271(1)(c) of the Act on the said disallowance. The Ld CIT(A)

also confirmed the same.

3.      We notice that the explanation of the assessee was that the

Depreciation chart of the current year was prepared through the computer

system by adopting the relevant figures from the immediately preceding

year. However, the rate of depreciation relating to the Plant and Machinery

was inadvertently omitted to be modified to 25% from 40% and the said

error came to be noticed only when the AO pointed out the same.

Accordingly it was submitted that the mistake has occurred due to

inadvertence. But the said explanation was not acceptable to both the tax

authorities.

4.      Now the effective question that arises before us is whether the

above said explanation of the assessee is a bonafide one or not. If it is

found to be a bonafide one, then the penalty shall not lie in view of the

Explanation 1 to sec 271(1)(c) of the Act. The fact that the assessee was
                                                             ITA No.6510/M/12
                                    3


eligible to claim higher rate of depreciation @ 40% in the immediately

preceding year was not disputed. It is also quiet natural in this computer

era to prepare Depreciation chart by downloading the relevant figures

from the chart of the immediately preceding year. Viewed from this angle,

we are of the view that the explanation of the assessee appears to be

bonafide one. It is quite possible that the depreciation rate may escape

the attention while preparing the Depreciation Chart, since the basic

depreciation rate has not been changed in the Statute during the year

under consideration. Hence, we are of the view that the explanation given

by the assessee should be considered as bonafide one and hence

Explanation 1 to sec. 271(1)(c) shall apply to the same. Accordingly, we

set aside the order of Ld CIT(A) on the penalty levied on the disallowance

of depreciation claimed on Plant and Machinery and direct the AO to delete

the penalty levied thereon.






5.    The next disallowance relate to the depreciation claimed on land. It

is an admitted position of law that the depreciation is not allowable on

land. Hence, the depreciation claimed by the assessee land turns out to

be a wrong claim even in the immediately preceding year. Further, we

notice that the assessee has failed to furnish any explanation in this

regard. Under these set of facts, we are of the view that the Ld CIT(A)

was justified in confirming the penalty levied on disallowance of

depreciation relating to Land.
                                                                  ITA No.6510/M/12
                                       4


6.      In the result, the appeal of the assessee is partly allowed.
        The above order was pronounced in the open court on 18th Feb,
2015.
              18th Feb, 2015    

         sd                                      sd

(..       /I.P. BANSAL)                 (..  ,/ B.R. BASKARAN)
     / Judicial Member                       /Accountant Member

 Mumbai: 18th Feb,2015.

. ../ SRL , Sr. PS

        /Copy of the Order forwarded to :
1.  / The Appellant
2.       / The Respondent.
3.     () / The CIT(A)- concerned
4.      / CIT concerned
5.      ,     ,  /
     DR, ITAT, Mumbai concerned
6.     / Guard file.


                                                  / BY ORDER,
              true copy
                                                  (Asstt. Registrar)
                                       ,  /ITAT, Mumbai