2023 (8) TMI 1624 - AT - Income Tax

Penalty under Section 43 of Black Money Act set aside for foreign investment disclosure confusion

CIT (OSD) Central, Range-5, Mumbai Versus Shrem Alloys Pvt Ltd

The ITAT Mumbai ruled in favor of the assessee regarding penalty under section 43 of the Black Money Act for alleged failure to disclose foreign ... Penalty u/s 43 of Black Money Act - failure to disclose investment in foreign entity, in the return of income filed under the Income-tax Act - HELD THAT:- From the chart it appears that there was slight confusions in the mind of the Assessee qua disclosure of investment as sometime disclosed in Schedule FA and sometime disclosed in Schedule ‘holding status’ only; but it is undisputed fact that the Assessee has duly disclosed the investment in its books of account continuously. Assessee may be belatedly, but infact shown / disclosed the said investment in Schedule FA as well as in Schedule ‘Holding Status’ while filing its return of income u/s153A. From the provisions of section 153A(1)(a), it is clear that for processing the return filed in response to the notice under section 153A same provisions of the Act shall be applicable as applicable to the return filed u/s 139 of the Act, therefore return furnished u/s 153A can be treated at par with the return furnished under section 139 of the Act . Case in hand is not the case of deliberate or malafide or dishonest action or non-action or breach or defiance or disregard of statutory provisions of law, but infact, as the Assessee had shown the foreign investment in Schedule ‘FA’ initially in the AY 2012-13 itself when such investment was made and thereafter occasionally in Schedule ‘Holding Status’ but continuously in its books of account, therefore there is no justification for imposition of penalty - Decided in favour of assessee. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered in this judgment are:Whether the Assessee failed to disclose its investment in a foreign entity in the original return of income under section 139(1) of the Income-tax Act, 1961, thereby attracting penalty under section 43 of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 (BMI Act).Whether the disclosure of such investment in the return filed under section 153A of the Income-tax Act suffices to negate the imposition of penalty under section 43 of the BMI Act.Whether the imposition of penalty under section 43 of the BMI Act is discretionary and if so, whether the discretion was exercised judiciously in this case.ISSUE-WISE DETAILED ANALYSIS1. Failure to Disclose Investment in Original Return:Relevant legal framework and precedents: Section 43 of the BMI Act mandates a penalty for failure to furnish information or furnishing inaccurate particulars in the return relating to any asset located outside India. The penalty is discretionary, as indicated by the use of the term 'may' in the provision.Court's interpretation and reasoning: The Tribunal noted that the Assessee did not disclose its investment in the foreign entity, M/s Shrem Global Limited, in the original return filed under section 139(1) for the assessment year 2014-15. However, it was disclosed in the return filed under section 153A.Key evidence and findings: The Assessee had initially disclosed the investment in earlier assessment years and maintained it in its books of account. The omission in the original return was attributed to an oversight by the company's executive.Application of law to facts: The Tribunal considered whether the omission was deliberate or constituted a technical or venial breach. The Assessee's subsequent disclosure in the section 153A return and continuous accounting in its books were significant factors.Treatment of competing arguments: The Revenue argued for penalty imposition due to non-disclosure in the original return. The Assessee contended that the disclosure in the section 153A return and the initial disclosure in the AY 2012-13 return should negate the penalty.Conclusions: The Tribunal found that there was no deliberate or dishonest non-disclosure, and the penalty was not warranted.2. Sufficiency of Disclosure in Section 153A Return:Relevant legal framework and precedents: Section 153A of the Income-tax Act requires a fresh return to be filed post-search, and it is treated at par with a return filed under section 139.Court's interpretation and reasoning: The Tribunal held that the disclosure in the section 153A return suffices, as the same provisions apply as to a return under section 139.Key evidence and findings: The Assessee disclosed the investment in the section 153A return, which was accepted by the Assessing Officer.Application of law to facts: The Tribunal determined that the section 153A return was a valid corrective measure for the initial oversight.Treatment of competing arguments: The Revenue's position was that the original non-disclosure warranted penalty, while the Assessee argued that the section 153A return rectified the oversight.Conclusions: The Tribunal concluded that the section 153A return disclosure was sufficient to negate the penalty.3. Discretionary Nature of Penalty under Section 43:Relevant legal framework and precedents: The discretion in imposing penalties, as established in precedents like M/s Hindustan Steel Ltd. vs State of Orissa, requires judicial and reasonable exercise.Court's interpretation and reasoning: The Tribunal emphasized that penalties should not be imposed for technical breaches or genuine mistakes.Key evidence and findings: The Tribunal found no evidence of deliberate or contumacious conduct by the Assessee.Application of law to facts: The Tribunal considered the Assessee's continuous disclosure in books and initial disclosure in AY 2012-13 as mitigating factors.Treatment of competing arguments: The Revenue sought penalty imposition, while the Assessee argued for discretion due to the nature of the breach.Conclusions: The Tribunal held that the discretionary power was not exercised appropriately by the Assessing Officer, and the penalty was unjustified.SIGNIFICANT HOLDINGSPreserve verbatim quotes of crucial legal reasoning: 'The discretion has to be exercised judicially and in a reasonable and justified manner and by considering the relevant circumstances.'Core principles established: Penalties under section 43 of the BMI Act are discretionary and should not be imposed for technical or venial breaches. Disclosure in a section 153A return can rectify initial non-disclosure.Final determinations on each issue: The Tribunal upheld the Ld. Commissioner's decision to delete the penalty, finding no deliberate or dishonest conduct by the Assessee. The appeals filed by the Revenue Department were dismissed.