2016 (1) TMI 630 - AT - Income Tax

Tribunal Upholds Concealment Penalty, Adjusts based on Transaction Genuineness.

Heeranand Ghanshyam Sukhwani and Mohini Ghanshyam Sukhwani, Versus The Income Tax Officer, Ward 8 (2), Pune.

Heeranand Ghanshyam Sukhwani and Mohini Ghanshyam Sukhwani, Versus The Income Tax Officer, Ward 8 (2), Pune. - TMI Issues Involved:1. Levy of concealment penalty under section 271(1)(c) of the Income-tax Act, 1961.2. Determination of the quantum of penalty (100% vs. 150% of the tax evaded).3. Validity and genuineness of long-term capital gains claimed by the assessee.Issue-wise Detailed Analysis:1. Levy of Concealment Penalty under Section 271(1)(c):The primary issue is whether the concealment penalty under section 271(1)(c) of the Income-tax Act, 1961, is justified. The appeals involve the assessee's claim of long-term capital gains from the sale of shares, which the Assessing Officer (AO) and Commissioner of Income Tax (Appeals) [CIT(A)] found to be non-genuine. The AO observed that the transactions were manipulated, and the assessee failed to produce the brokers involved in the transactions. The AO treated the capital gains as 'undisclosed income' and imposed a penalty. The CIT(A) upheld the levy of penalty but reduced it to 150% of the tax evaded.2. Determination of the Quantum of Penalty:The assessee contended that the penalty should be reduced to the minimum permissible limit of 100% of the tax evaded. The Tribunal found the transactions suspicious but acknowledged that the shares were transferred through the Demat account and the sale was not disputed. Considering these mitigating circumstances, the Tribunal agreed to reduce the penalty to 100% of the tax evaded.3. Validity and Genuineness of Long-term Capital Gains:The Tribunal examined the details of the share transactions, noting several discrepancies such as off-market transactions, cash payments for purchases, and delayed credit of shares in the Demat account. The AO's detailed enquiries and the findings of the Investigation Wing of the Income Tax Department indicated that the transactions were not genuine. The Tribunal concurred with the lower authorities that the transactions were manipulated to declare wrongful long-term capital gains.Case-specific Judgments:Heeranand Ghanshyam Sukhwani (ITA No.1513/PN/2013):The Tribunal upheld the penalty but reduced it to 100% of the tax evaded, considering the transactions were executed through the Demat account. The appeal was dismissed.Heeranand Ghanshyam Sukhwani (ITA No.1514/PN/2013):For the assessment year 2004-05, the Tribunal noted that the shares were transferred in the Demat account before the sale, and the purchase considerations were paid by cheque. The CIT(A) treated the gains as short-term capital gains instead of long-term. The Tribunal found that the imposition of penalty was not justified based on unproved facts and set aside the penalty. The appeal was allowed.Mohini Ghanshyam Sukhwani (ITA No.1515/PN/2013):The facts were similar to Heeranand Ghanshyam Sukhwani's case for the assessment year 2004-05. The Tribunal followed the same reasoning and set aside the penalty. The appeal was allowed.Conclusion:The Tribunal provided a nuanced judgment, reducing the penalty to 100% of the tax evaded in cases where the transactions were executed through the Demat account but setting aside the penalty where the facts suggested partial genuineness of transactions. The appeals were disposed of accordingly.