2024 (1) TMI 1446 - AT - Income Tax

Penalty under Section 43 Black Money Act deleted for non-disclosure of foreign investments made by father

Ms. Harshita Nirmal Jain,   Versus  CIT (A) -51, 6th Floor, Mumbai and JCIT, Central Circle,  Mumbai

ITAT Mumbai deleted penalty under section 43 of Black Money Act imposed on assessee for non-disclosure of foreign investments in IT return. The tribunal ... Penalty u/s 43 of Black Money Act - non disclosure of foreign investments in IT return - HELD THAT:- When it is undisputed fact on record that the amount was invested by Shri Nirmal Jain in the name of the assessee, who under bonafide belief has not disclosed in Schedule FA of her return of income, no malafide can be attributed to the assessee and levy of penalty by the AO is not justified. Identical issue has been decided by the co-ordinate Bench of the Tribunal in case of Aditi Avinash Athavankar [2023 (7) TMI 1561 - ITAT MUMBAI] When father of the assessee has already been slapped with penalty qua the amount invested by him in the name of the assessee by virtue of the order dated 31.07.2023 the assessee who has not disclosed the same under bonafide belief cannot be made to suffer, hence penalty levied by the AO and confirmed by CIT(A) u/s 43 of the BM Act is ordered to be deleted. Appeal of assessee iallowed. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered in this judgment were:1. Whether the penalty under Section 43 of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 (BMA) was justifiably levied on the assessee for failing to disclose foreign investments in her income tax return.2. Whether the assessee's belief that the investments made in her name by her father did not require separate disclosure in her tax return constitutes a bona fide belief, thereby negating the imposition of penalty.3. Whether the penalty levied on the father of the assessee for the same investment amount impacts the justification for imposing a penalty on the assessee.ISSUE-WISE DETAILED ANALYSIS1. Penalty under Section 43 of the BMARelevant legal framework and precedents: Section 43 of the BMA mandates penalties for non-disclosure of foreign income and assets. The legal framework requires taxpayers to disclose foreign investments in their income tax returns, specifically in Schedule FA.Court's interpretation and reasoning: The Tribunal examined whether the non-disclosure by the assessee was intentional or a result of a bona fide belief. The Tribunal considered the fact that the investment was made by the assessee's father and was disclosed in his tax return, which led to the assessee's belief that separate disclosure was unnecessary.Key evidence and findings: The evidence showed that the investment amount of Rs.5,59,75,000/- was made by the father in the name of the assessee. The Tribunal noted that the father had already been penalized for this investment, indicating that the funds were accounted for and taxed.Application of law to facts: The Tribunal applied the legal requirement for disclosure against the factual backdrop of the father's investment and the assessee's subsequent belief. The Tribunal found that the non-disclosure was not due to malafide intent but rather a misunderstanding of the disclosure requirements.Treatment of competing arguments: The Revenue argued for the imposition of the penalty due to non-disclosure, while the assessee argued that the penalty was unwarranted due to the bona fide belief and the father's prior penalty. The Tribunal sided with the assessee, emphasizing the absence of malafide intent.Conclusions: The Tribunal concluded that the penalty under Section 43 was not justified and should be deleted, as the non-disclosure was not intentional but based on a bona fide belief.2. Impact of Father's Penalty on Assessee's CaseRelevant legal framework and precedents: The Tribunal considered the precedent where penalties were levied on the person responsible for the initial non-disclosure, in this case, the father. The Tribunal examined whether this precedent affected the justification for penalizing the assessee.Court's interpretation and reasoning: The Tribunal reasoned that since the father had already been penalized for the investment amount, imposing an additional penalty on the assessee would be unjust, especially given her bona fide belief.Key evidence and findings: The Tribunal found that the penalty on the father covered the same investment amount, indicating that the funds were already subjected to scrutiny and penalty.Application of law to facts: The Tribunal applied the principle of fairness, determining that additional penalties on the assessee would be excessive and unwarranted given the circumstances.Treatment of competing arguments: The Tribunal considered the Revenue's stance on penalizing all non-disclosures but ultimately found that the father's penalty sufficiently addressed the issue.Conclusions: The Tribunal concluded that the penalty on the father negated the need for an additional penalty on the assessee, leading to the deletion of the penalty under Section 43.SIGNIFICANT HOLDINGSPreserve verbatim quotes of crucial legal reasoning: 'When it is undisputed fact on record that the amount of Rs.5,59,75,000/- was invested by Shri Nirmal Jain in the name of the assessee, who under bona fide belief has not disclosed in Schedule FA of her return of income, no malafide can be attributed to the assessee and levy of penalty by the AO is not justified.'Core principles established: The Tribunal established that bona fide belief, especially when supported by the disclosure in another related party's return, can negate the justification for penalties under the BMA. Moreover, penalties already levied on the actual investor (father) should be considered in assessing the fairness of additional penalties.Final determinations on each issue: The Tribunal determined that the penalty under Section 43 of the BMA on the assessee was unjustified and ordered its deletion, allowing the appeal filed by the assessee.