2016 (3) TMI 28 - HC - Income Tax

Tribunal confirms penalty, dismisses appeal.

The Tribunal upheld the orders of the CIT(A) and the Assessing Officer, confirming the penalty and rejecting the rectification application. The appeal was ... Rectification of mistake - Whether the income clearly exempted from ambit of Income Tax Act can constitute basis for claim of tax, interest, penalty, only on the ground that factum of non taxability of the sale proceeds, being outside the purview of capital gain as per notification of Central Government was not known to the assessee at the stage of filing return under section 139 of Income Tax Act? - Held that:- As rightly recorded by the Tribunal that if the return had been filed wrongly or any claim had been made wrongly or the assessee after filing the return under section 139(1) of the Act discovered any omission or any wrong statement therein, he could have furnished a revised return at any time before the expiry of one year from the end of the relevant assessment year or before completion of assessment whichever was earlier under section 139(5) of the Act. Alternatively, under Section 264 of the Act, the assessee could file a petition for revision within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it whichever was earlier. The assessee chose not to adopt any of the options for getting the revision of the claim. The Tribunal concurred with the findings recorded by the CIT(A) and the Assessing Officer in rejecting the assessee's rectification application because the mistake sought to be amended was not prima facie mistake. Secondly the assessee was submitting corroborating evidence with the rectification application which required investigation and verification and thus the same was outside the purview of the provisions of Section 154 of the Act. - Decided against assessee Issues Involved:1. Non-taxability of sale proceeds as capital gains.2. Justification of impugned orders based on facts and documents.3. Error in the Commissioner of Income Tax (Appeals) not remanding the matter back to the Assessing Officer.4. Error in the Appellate Tribunal not remanding the matter back to the Assessing Officer.Issue-wise Detailed Analysis:1. Non-taxability of Sale Proceeds as Capital Gains:The appellant contended that the land sold, being outside the 6 kilometers range from municipal limits, was not a capital asset under Section 2(14) of the Income Tax Act, 1961, and thus the sale proceeds were not subject to capital gains tax. However, the Tribunal noted that the appellant did not revise the return under Section 139(5) of the Act or file a petition for revision under Section 264 of the Act within the stipulated time. The Tribunal upheld the findings of the CIT(A) and the Assessing Officer, rejecting the rectification application as the mistake was not prima facie and required further investigation and verification, which is beyond the scope of Section 154 of the Act.2. Justification of Impugned Orders Based on Facts and Documents:The Tribunal concurred with the CIT(A) and the Assessing Officer that the appellant's claim of non-taxability was not supported by the facts and documents presented. The appellant's failure to deposit self-assessed tax and the incorrect declaration in the return were highlighted. The Tribunal found no sufficient cause for the appellant's failure to pay taxes, noting that the appellant chose to invest in a family concern rather than pay the tax liability, which indicated an intentional avoidance of tax liability.3. Error in the Commissioner of Income Tax (Appeals) Not Remanding the Matter Back to the Assessing Officer:The appellant argued that the CIT(A) erred by not remanding the matter back to the Assessing Officer for reconsideration. However, the Tribunal found that the CIT(A) was justified in confirming the penalty under Section 221(1) of the Act. The Tribunal emphasized that the appellant had ample opportunity to correct the mistake through a revised return or a petition for revision, which he failed to utilize.4. Error in the Appellate Tribunal Not Remanding the Matter Back to the Assessing Officer:The appellant also contended that the Appellate Tribunal erred by not remanding the matter back to the Assessing Officer. The Tribunal reiterated that the additional ground raised by the appellant regarding the mistake in the legal advice was not admissible. The Tribunal found that the appellant did not adopt the available legal remedies in a timely manner and thus rejected the additional ground.Conclusion:The Tribunal upheld the orders of the CIT(A) and the Assessing Officer, confirming the penalty and rejecting the rectification application. The concurrent findings of the authorities were deemed neither illegal nor perverse, and thus no substantial question of law was found to warrant interference by the Court. The appeal was dismissed.