1989 (10) TMI 234 - AT - Income Tax

Tribunal cancels penalty for cooperative society due to lack of guilty intent and absence of taxable income

Shri Khedut Sahakari Khand Udyog Mandali Ltd. Versus Income-Tax Officer

Shri Khedut Sahakari Khand Udyog Mandali Ltd. Versus Income-Tax Officer - 36 TTJ 81 Issues Involved:1. Levy of penalty under section 271(1)(c) of the Income-tax Act, 1961.2. Validity of the addition of Rs. 12,88,165 to the total income of the assessee.3. Bona fide nature of the assessee's explanation and disclosure of facts.4. Applicability of Explanation 4 to section 271(1)(c) in cases of assessed loss.Issue-wise Detailed Analysis:1. Levy of penalty under section 271(1)(c) of the Income-tax Act, 1961:The assessee, a cooperative society engaged in manufacturing and selling sugar, was penalized Rs. 6,50,000 under section 271(1)(c) for allegedly furnishing inaccurate particulars of income. The Commissioner (Appeals) confirmed this penalty. The penalty was imposed on the grounds that the assessee had deliberately furnished inaccurate particulars of income and claimed a wrong deduction of Rs. 12,88,165, which was transferred to the 'Shareholders Dividend Fund Account.'2. Validity of the addition of Rs. 12,88,165 to the total income of the assessee:The assessee had debited Rs. 12,88,165 in the trading account, which was transferred to the 'Shareholders Dividend Fund Account.' The ITO added this amount to the total income of the assessee and issued a notice under section 274 read with section 271(1)(c). The assessee did not appeal against this addition, citing the futility of incurring further legal expenses due to existing huge losses. The learned counsel for the assessee argued that this amount was merely a transfer from one liability account to another and did not constitute real income. The addition was not contested in the preceding year either, and no penalty proceedings were initiated then.3. Bona fide nature of the assessee's explanation and disclosure of facts:The learned counsel for the assessee contended that the transfer of Rs. 12,88,165 was bona fide and fully disclosed in the audited balance sheet submitted along with the return of income. The amount was shown under the head 'proposed allocation of Member's contribution from sugarcane price for payment of dividend.' The counsel argued that there was no guilty intention as the society was incurring huge losses and the entry was made to facilitate dividend payment to its members. The counsel also cited the proviso to Explanation 1 to section 271(1)(c), which exempts bona fide explanations with full disclosure of facts from penalty.4. Applicability of Explanation 4 to section 271(1)(c) in cases of assessed loss:The learned Departmental Representative argued that the assessee's acceptance of the addition amounted to an admission that the amount represented real income. He contended that Explanation 4 to section 271(1)(c) allows for penalty even in cases of assessed loss. However, the Tribunal noted that the total assessed loss, including unabsorbed depreciation, was Rs. 2,74,54,022, and the assessee had no taxable income due to huge accumulated losses. The Tribunal referenced the decision in the case of SUDHA PHARMACEUTICALS PVT LTD., where it was held that no penalty is leviable under section 271(1)(c) if no tax is payable by the assessee. The Tribunal concluded that the word 'income' in Explanation 4 does not include loss and that the penalty provisions apply only to cases with positive income.Conclusion:The Tribunal found that the assessee had no guilty intention and had made the entry in a bona fide manner. The entry was fully disclosed, and the assessee had suffered continuous losses, negating any motive to evade tax. The Tribunal held that no penalty could be validly imposed under section 271(1)(c) given the facts and circumstances of the case. Consequently, the penalty of Rs. 6,50,000 was cancelled, and the assessee's appeal was allowed.