Tribunal cancels penalty for Chilean national's non-disclosure, citing lack of intent

Emilio Ruiz Berdejo. Versus Deputy Commissioner Of Income-Tax.

Emilio Ruiz Berdejo. Versus Deputy Commissioner Of Income-Tax. - ITD 118, 971, [2009] 29 SOT 3 (PUNE) (URO) Issues Involved:
1. Justification of the penalty under Section 271(1)(c) of the Income Tax Act, 1961.
2. Allegation of concealment of income and evasion of assessment.
3. Bona fide belief regarding non-taxability of additional income.
4. Voluntariness of the disclosure of additional income.
5. Procedural aspects regarding the recording of satisfaction by the Assessing Officer (AO).

Detailed Analysis:

1. Justification of the Penalty under Section 271(1)(c):
The taxpayer, a Chilean national employed with Tetra Pack International SA (TP-Swiss), was deputed to Tetra Pack India (TP-India). The taxpayer did not include certain compensation received in India in his taxable income, believing it was not liable to Indian taxation. However, upon review, TP-Swiss revised the computation and paid additional taxes. The AO imposed a penalty of Rs. 43,49,376 for concealment of income, which was upheld by the CIT(A). The tribunal noted that the taxpayer acted on the advice of TP-Swiss and had no intent to conceal income.

2. Allegation of Concealment of Income and Evasion of Assessment:
The AO argued that the taxpayer had deliberately concealed income and only disclosed it after reassessment proceedings were initiated. However, the tribunal found that the taxpayer's employer had voluntarily disclosed the income and paid the taxes before the reassessment notice. The tribunal concluded that the taxpayer did not have any mala fide intent to conceal income.

3. Bona Fide Belief Regarding Non-Taxability of Additional Income:
The taxpayer contended that he had a bona fide belief that the additional income was not taxable in India. The tribunal accepted this explanation, noting that the taxpayer relied on the advice of TP-Swiss and was not well-versed in Indian tax laws. The tribunal found the explanation reasonable and supported by the employer's letter, which stated that the income was believed to be non-taxable in India.

4. Voluntariness of the Disclosure of Additional Income:
The CIT(A) held that the taxpayer did not voluntarily disclose the income. However, the tribunal found that the disclosure was made by TP-Swiss before the reassessment notice was issued. The tribunal noted that the taxpayer had no pecuniary advantage in concealing income, as he was paid a salary net of taxes. The tribunal concluded that the taxpayer's conduct was bona fide and the delay in filing the revised return was due to procedural issues.

5. Procedural Aspects Regarding the Recording of Satisfaction by the AO:
The tribunal observed that the AO did not record his satisfaction that it was a fit case for initiating penalty proceedings at the time of finalizing the assessment order. This procedural lapse, along with the taxpayer's reasonable explanation and lack of mala fide intent, led the tribunal to quash the penalty.

Conclusion:
The tribunal allowed the appeal, directing the AO to delete the penalty. The taxpayer's explanation for not disclosing the income was found reasonable and supported by evidence. The tribunal emphasized that the penalty should not be imposed merely because it is lawful to do so, and the taxpayer's conduct did not demonstrate any intent to evade taxes.