Tribunal waives penalty under Income Tax Act, stresses genuine explanation.

M/s. Jaya Permai Enterprise (India) Pvt. Ltd. Versus Income Tax Officer, Ward- 15 (2) (2) Mumbai

M/s. Jaya Permai Enterprise (India) Pvt. Ltd. Versus Income Tax Officer, Ward- 15 (2) (2) Mumbai - TMI Issues Involved:
1. Condonation of delay in filing appeal before the Tribunal.
2. Levy of penalty under section 271(1)(c) of the Income Tax Act, 1961.

Detailed Analysis:

1. Condonation of Delay in Filing Appeal:

The appeal was filed with a delay of 41 days. The assessee explained that the delay was due to the closure of its operations in India and the subsequent legal consultations which advised against paying the penalty demand. The assessee cited judgments from the Supreme Court, including Collector, Land Acquisition v. Mst. Katiji and N. Balakrishnan v. Krishnamurthy, to support the condonation of delay. The Tribunal acknowledged that the delay was not deliberate or intentional and condoned the delay, allowing the appeal to be admitted.

2. Levy of Penalty under Section 271(1)(c):

The assessee contested the penalty of Rs. 9,18,395 levied by the AO under section 271(1)(c) for various disallowances and additions made during the assessment. The key disallowances included:

- Disallowance under Section 40(a)(ia): The AO disallowed Rs. 84,438 for non-deduction of TDS on labor and consultancy charges. The Tribunal found that the payments included amounts not subject to TDS and referenced the case of ACIT v. M/s. Medercity Online Pvt. Ltd., which held that such disallowances do not amount to concealment of income.

- Disallowance under Section 43B: The AO disallowed Rs. 17,99,640 for late payment of service tax and MVAT. The Tribunal noted that these amounts were not claimed as expenses in the Profit & Loss Account and referenced cases like Pharma Search v. ACIT and DCIT v. M/s. M C Retail Pvt. Ltd., which held that unpaid VAT and service tax liabilities not debited to the Profit & Loss Account cannot be added back under section 43B.

- Addition under Section 68: The AO added Rs. 10,90,000 as unexplained cash credit. The Tribunal found that the cash deposits were out of prior cash withdrawals, referencing cases like Gordhan V. ITO and Jasbir Singh Saini v. ITO, which held that no addition could be made merely due to a time gap between withdrawals and deposits.

The Tribunal concluded that the assessee had provided a bona fide explanation and disclosed all relevant facts. The penalty could not be levied merely because the AO did not accept the explanations. The Tribunal emphasized that penalty proceedings are distinct from assessment proceedings, and findings in the assessment order are not conclusive for penalty imposition. The Tribunal also noted that the penalty show-cause notice did not specify the exact charge, making the penalty bad in law, referencing cases like CIT v. SSA's Emerald Meadows and Meherjee Cassinath Holdings (P) Ltd. v. ACIT.

In light of the above, the Tribunal deleted the penalty of Rs. 9,18,395 and allowed the appeal of the assessee.

Conclusion:

The appeal was allowed, and the penalty levied under section 271(1)(c) was deleted. The Tribunal emphasized the importance of providing a bona fide explanation and full disclosure of facts, and it found that the assessee had met these requirements.