2013 (4) TMI 485 - AT - Income Tax

Partnership firm penalties canceled for timely filing returns & lack of incriminating evidence

Vasavi Shelters Versus Income-tax Officer, Ward 4(1), Bangalore

Vasavi Shelters Versus Income-tax Officer, Ward 4(1), Bangalore - TMI Issues Involved:1. Imposition of penalty under Section 271(1)(c) of the Income Tax Act.2. Justification of penalty on income declared in the return of income.3. Justification of penalty on the difference between income declared in the return and income assessed by the AO.Issue-wise Detailed Analysis:1. Imposition of penalty under Section 271(1)(c) of the Income Tax Act:The assessee, a partnership firm engaged in selling real estate, did not file returns for AYs 2007-08 and 2008-09 on time. A survey under Section 133A revealed undisclosed sales, leading the assessee to agree to declare 11.5% of sales as income. The AO issued notices under Section 148, and the assessee filed returns declaring income at 11% of sales. The AO imposed penalties under Section 271(1)(c), reasoning that the returns were not voluntary but a result of the survey. The CIT(A) upheld the penalties, stating the non-disclosure was evident as no returns were filed before the survey.2. Justification of penalty on income declared in the return of income:The Tribunal found that penalties under Section 271(1)(c) cannot be imposed on income declared in the return. The Tribunal emphasized that penalty for 'concealing particulars of income or furnishing inaccurate particulars' starts with the return of income. If the income declared in the return is ultimately taxed, there is no concealment. The Tribunal referred to Explanations 3, 5, and 5A of Section 271(1)(c), which provide exceptions but found them inapplicable here. The Tribunal concluded that since the assessee filed returns within two years from the end of the assessment years and before the issuance of notice under Section 148, Explanation 3 did not apply.3. Justification of penalty on the difference between income declared in the return and income assessed by the AO:The Tribunal considered the difference between the income declared in the return and the income assessed by the AO. The assessee explained that the discrepancy was due to inadvertently offering 11% instead of 11.5% of sales as income. The Tribunal accepted this explanation as bona fide, noting the agreement between the revenue and the assessee during the survey. The Tribunal held that penalties cannot be imposed for additions based on estimates without incriminating evidence and that the assessee satisfied the burden under Explanation 1 to Section 271(1)(c).Conclusion:The Tribunal canceled the penalties imposed on the assessee for both assessment years, concluding that penalties under Section 271(1)(c) were not justified for the income declared in the return or the difference between the declared and assessed income. The appeals were allowed.