2017 (2) TMI 591 - AT - Income Tax

Tribunal upholds penalty for income concealment but deletes penalty for disallowed expenses

The Tribunal upheld the penalty of Rs. 98,79,990 under Section 271(1)(c) for concealment of income under Section 115JB, citing non-compliance with ... Penalty under section 271(1)(c) - Minimum Alternate Tax (MAT) under section 115JB - form 29B and Rule 40B - exemption under section 10(38) - concealment of income vs. bona fide omission - penalty on disallowance of expenses where MAT exceeds normal taxPenalty under section 271(1)(c) - Minimum Alternate Tax (MAT) under section 115JB - form 29B and Rule 40B - exemption under section 10(38) - concealment of income vs. bona fide omission - Validity of penalty imposed for failure to compute and pay MAT by not including exempt long term capital gains in book profit and not filing form 29B. - HELD THAT: - The Tribunal upheld the penalty imposed u/s 271(1)(c) for not disclosing the deemed income under section 115JB because the assessee omitted to file the statutory Form 29B and did not furnish computation of book profit though the long term capital gain exempt u/s 10(38) (required to be included in book profit for MAT) was shown in accounts. The assessee's reliance on authorities holding bona fide omission was distinguished: unlike those cases, the assessee here neither revised the return nor filed Form 29B during assessment despite opportunities to do so; it had routinely furnished MAT workings in earlier years, which negatived a claim of inadvertence. The Assessing Officer's findings (non offer of MAT income, non payment of MAT, absence of comparative working, non filing of Form 29B, and substantial amount involved) were treated as supporting an inference of concealment and lack of bona fides. On these facts the Tribunal sustained the CIT(A)'s confirmation of penalty calculated on the tax attributable to deemed income under section 115JB. [Paras 10, 11, 12, 13, 14]Penalty of Rs. 98,79,990 under section 271(1)(c) for failure to compute/pay MAT and non compliance with filing requirements is upheld.Penalty under section 271(1)(c) - penalty on disallowance of expenses where MAT exceeds normal tax - concealment of income vs. bona fide omission - Levy of penalty in respect of disallowance of administrative and business expenses where such disallowance did not affect tax liability because MAT exceeded normal tax. - HELD THAT: - The Tribunal found that the disallowed expenses were genuine, supported by audit and records, and related to ordinary administrative/business running costs. The assessee had shown positive business income in its computation and there was no dispute as to the genuineness of the expenditures. Importantly, for the year under appeal the tax liability under section 115JB (MAT) exceeded the normal tax liability, so disallowance of the expenses would not have changed the overall tax payable. Because penalty u/s 271(1)(c) requires furnishing inaccurate particulars or concealment, and the particulars were furnished in audited accounts and computation with bona fide claims, imposition of penalty on this disallowance was not justified. Accordingly the penalty in respect of these disallowed expenditures was deleted. [Paras 16, 17, 19]Penalty of Rs. 4,63,247 (in respect of disallowed expenses) is deleted.Final Conclusion: Appeal partly allowed: penalty for failure to compute/offer MAT and non filing of Form 29B under section 271(1)(c) upheld; penalty levied in respect of disallowed expenses deleted. Issues Involved:1. Validity of the penalty order passed by the Assessing Officer.2. Levying of penalty of Rs. 98,79,990 under Section 271(1)(c) for concealment of income under Section 115JB.3. Levying of penalty of Rs. 4,63,247 under Section 271(1)(c) for disallowance of expenses in the computation of total income.4. Quantum of penalty under Section 271(1)(c).Detailed Analysis:1. Validity of the Penalty Order:The appellant contested the validity of the penalty order passed by the Assessing Officer. It was argued that the appellant provided all necessary material facts and information, and there was no concealment of income or filing of inaccurate particulars. The appellant contended that the omission to include the capital gain in the book profit calculation was a bona fide error due to oversight of the amended provisions of Section 115JB applicable from the assessment year 2007-08.2. Penalty of Rs. 98,79,990 under Section 271(1)(c) for Concealment of Income:The appellant argued that the penalty for not showing the total income pursuant to Section 115JB and instead returning total income as per normal provisions was erroneous. The appellant cited judgments from the Delhi High Court and Punjab & Haryana High Court, emphasizing that the omission was bona fide and not intentional. The Tribunal, however, observed that the appellant failed to file the required Form 29B and did not revise the return to include the MAT calculation, raising doubts about the bona fides and suggesting a lack of compliance with statutory requirements. The Tribunal upheld the penalty, noting that the appellant had consistently provided MAT calculations in previous years but failed to do so when MAT was higher than normal tax.3. Penalty of Rs. 4,63,247 under Section 271(1)(c) for Disallowance of Expenses:The appellant contended that the disallowance of expenses had no bearing on the tax liability since the total income was deemed equal to the book profit under Section 115JB. The Tribunal observed that the expenses claimed were genuine and supported by evidence, and the appellant had shown positive business income. It was noted that the expenses were of a general administrative nature necessary for running the company. The Tribunal concluded that the appellant did not furnish inaccurate particulars or conceal income, and the penalty was not justified given the higher tax liability under MAT. The penalty of Rs. 4,63,247 was deleted.4. Quantum of Penalty under Section 271(1)(c):The appellant argued that even if the penalty was justified, the quantum should be less than the amount levied. The Tribunal did not find this argument persuasive in the context of the Rs. 98,79,990 penalty, as the appellant had not complied with the statutory requirements and failed to revise the return or file the necessary form. The penalty was upheld at 100% of the deemed income under Section 115JB.Conclusion:The Tribunal upheld the penalty of Rs. 98,79,990 for concealment of income under Section 115JB, emphasizing the appellant's failure to file the required form and revise the return. However, the penalty of Rs. 4,63,247 for disallowance of expenses was deleted, recognizing the genuineness of the expenses and the higher tax liability under MAT. The appeal was partly allowed.