2023 (7) TMI 1560 - AT - Income Tax

Penalty upheld for non-disclosure of foreign investments under section 43 despite legitimate sources and bonafide mistake claims

Nirmal Bhanwarlal Jain Versus CIT (A) -51 and DDIT/ADIT (Inv.) -3 (1), Mumbai

Nirmal Bhanwarlal Jain Versus CIT (A) -51 and DDIT/ADIT (Inv.) -3 (1), Mumbai - TMI ISSUES PRESENTED and CONSIDEREDThe core legal issue considered in this judgment is whether the assessee is liable for penalties under Section 43 of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 (BMA) for failing to disclose foreign investments in the return of income for the assessment years (AY) 2016-17, 2017-18, and 2018-19. Specifically, the Tribunal examined whether the non-disclosure of investments made in the names of the assessee's children and the inaccurate reporting of the assessee's own investments constituted grounds for imposing penalties under the BMA.ISSUE-WISE DETAILED ANALYSISRelevant Legal Framework and PrecedentsSection 43 of the BMA mandates penalties for individuals who fail to furnish information or furnish inaccurate particulars in their return of income regarding assets located outside India. The section aims to deter the non-disclosure of foreign assets and investments, thereby curbing the stashing of black money abroad. The Tribunal referenced the statutory requirement for assessees to report foreign investments directly held or where they are beneficial owners or beneficiaries of any assets or income from sources outside India.Court's Interpretation and ReasoningThe Tribunal interpreted Section 43 as imposing strict penalties for non-disclosure or inaccurate disclosure of foreign assets, irrespective of whether the investments were made from accounted funds. The Tribunal emphasized that the legislative intent behind the BMA was to ensure comprehensive reporting of foreign assets to prevent black money accumulation abroad.Key Evidence and FindingsThe evidence presented included the assessee's admission of failing to disclose investments made in the names of his children and inaccurately reporting his own investments in the return of income. The Tribunal noted that while the assessee disclosed investments in his name, the reported amount was significantly less than the actual investment. Additionally, no separate returns were filed for the children, and their investments were not disclosed.Application of Law to FactsThe Tribunal applied Section 43 of the BMA to the facts, concluding that the assessee's failure to report the correct amounts and the non-disclosure of investments in the children's names constituted a breach of the statutory requirement. The Tribunal found that the penalties were applicable regardless of the source of funds used for the investments, as the section focuses on the reporting aspect rather than the origin of the funds.Treatment of Competing ArgumentsThe assessee argued that the non-disclosure was a bona fide mistake with no intention to evade taxes, and that the investments were made from duly accounted funds. The Tribunal acknowledged this argument but held that Section 43 does not provide leniency for bona fide mistakes or investments from known sources if the reporting requirements are not met. The Tribunal also considered the reliance on a precedent case but found the facts distinguishable and not supportive of the assessee's position.ConclusionsThe Tribunal concluded that the assessee's actions fell within the ambit of Section 43, warranting the imposition of penalties for the non-disclosure and inaccurate reporting of foreign investments. The Tribunal upheld the orders of the Commissioner of Income Tax (Appeals), confirming the penalties for the assessment years in question.SIGNIFICANT HOLDINGSThe Tribunal's significant holding was that Section 43 of the BMA imposes strict penalties for non-disclosure or inaccurate disclosure of foreign assets, emphasizing the importance of compliance with reporting requirements. The Tribunal stated, 'The provisions of section 43 of BMA may appear to be relentless, but a plain reading of section leaves no scope of gateway to delete penalty even if overseas investments are made from known sources, but not reported in Schedule FA of return of income.'The core principle established is that the BMA's penalty provisions apply strictly to ensure complete and accurate disclosure of foreign assets, irrespective of the source of funds. The Tribunal's final determination was to dismiss the appeals for all three assessment years, affirming the penalties imposed by the CIT(A).