2025 (9) TMI 1246 - AT - Income Tax

Penalties under section 271(1)(c) and disallowances under section 40A(3) deleted after additions set aside in appeal

M/s. SS Group (P) Ltd. Versus ACIT, Circle 4 (1), Gurgaon.

ITAT allowed the appeal and set aside penalties under section 271(1)(c). Penalty relating to claimed depreciation on goodwill was deleted because the ... Penalty u/s 271(1)(c) - AO has proceeded to make addition under two heads i.e. claim of depreciation on goodwill and disallowance/deemed income u/s 40A(3) - HELD THAT:- On claim of deprecation on goodwill, the assessee has preferred an appeal before the ld. CIT (A) and subsequently before the ITAT. The coordinate Bench considered the detailed submissions and material placed on record and they have decided the issue in favour of the assessee. Since the above issue is decided in favour of the assessee, the relevant penalty levied on the above claim of depreciation on goodwill deserves to be deleted. Accordingly, penalty levied on the depreciation of goodwill is hereby deleted. Disallowance of expenditure u/s 40A(3) we observe that AO has already reproduced various expenses and relevant parties to whom the payments were made were already listed in assessment order itself. From the above details submitted by the assessee, we observe that the payees are already identified and genuineness of the transaction is not in doubt. We observe that in the case of Ramchand Bhulchand Rajai [2024 (7) TMI 899 - ITAT AHMEDABAD] has considered the similar issue in detail. Levy of penalty on the addition made on account of disallowance made u/s 40A(3) of the Act is not sustainable. Appeal filed by the assessee is allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether penalty under section 271(1)(c) can be sustained insofar as it relates to the claim of depreciation on goodwill where the underlying addition has been deleted on appeal. 2. Whether penalty under section 271(1)(c) can be sustained in respect of disallowances under section 40A(3) where (a) payees/parties to whom payments were made are identified in the assessment record, (b) details of such payments were disclosed in the tax audit report/return (albeit omitted by software in the return filing), and (c) the assessee proffers a bona fide explanation for the treatment (including reliance on exceptions such as Rule 6DD). ISSUE-WISE DETAILED ANALYSIS Issue 1 - Penalty vis-à-vis depreciation on goodwill deleted in appeal Legal framework: Section 271(1)(c) penalises concealing or furnishing inaccurate particulars of income. Penal consequences attach to the existence of concealment or furnishing of inaccurate particulars - not merely to an addition or disallowance per se. When the underlying quantum addition is set aside by a higher forum, the legal foundation for the corresponding penalty may fall away. Precedent Treatment: The Tribunal applied the appellate outcome in favour of the taxpayer (deletion of the goodwill addition) as decisive for the related penalty. The approach accords with the principle that penalty cannot subsist when the factual/legal basis for asserting inaccurate particulars is overturned by competent adjudication. Interpretation and reasoning: The Tribunal observed that the assessing officer's penalty was premised in part on an addition for depreciation on goodwill. The assessee's appeal against that quantum addition succeeded before the Tribunal (coordinate bench) which deleted the addition. Given that the appellate conclusion nullified the asserted inaccuracy/concealment on that head, the Tribunal treated the penalty levied in respect of that claim as unsustainable. Ratio vs. Obiter: Ratio - where the underlying addition/disallowance that forms the basis of a penalty is reversed on appeal, the penalty relating to that specific claim is liable to be deleted. This is a decisive holding in the context of the present facts. No separate obiter pronouncement was made on collateral legal issues beyond this causal relationship. Conclusion: Penalty clause insofar as it related to the claim of depreciation on goodwill is deleted. Issue 2 - Penalty for disallowance under section 40A(3) where payments/payees were identified and disclosed Legal framework: Section 40A(3) contemplates disallowance of expenditure where payments to specified persons exceed prescribed limits; Rule 6DD and related provisions deal with exceptions and permissible circumstances. Section 271(1)(c) requires concealment or furnishing of inaccurate particulars. Disclosure in the tax audit report (section 44AB) and filing of return are relevant to whether particulars were concealed. The test for penalty is whether there was concealment or furnishing of inaccurate particulars with mens rea or a lack of bona fide explanation - mere unsustainability of a claim in law does not ipso facto attract penalty. Precedent Treatment (followed/distinguished/overruled): The Tribunal followed prior coordinate-bench decisions and higher-court authority applying the principle that penalty under section 271(1)(c) is not leviable where (i) all particulars were disclosed (e.g., in the tax audit report), (ii) payees are identifiable and genuineness of payments is not doubted, and (iii) the assessee had a bona fide belief/explanation (e.g., reliance on exceptions such as Rule 6DD). The authorities applied include: (a) a coordinate-bench ITAT decision holding no penalty where payees were identified and genuineness not doubted; (b) an Ahmedabad-bench ITAT decision which relied on the Supreme Court decision holding similar facts - disclosure + bona fide explanation - warrant deletion of penalty; and (c) a High Court authority emphasising that absence of concealment/falsity of factual information precludes penalty despite unsustainable claims in law. These precedents were followed and applied to the present facts. Interpretation and reasoning: The Tribunal examined the assessment record and found that the assessing officer himself reproduced the list of expenses and the payees in the assessment order - i.e., the payees were identified and particulars were on record. The assessee produced a letter (dated 06.11.2017) showing that details of payments/expenses were placed before the assessing officer and that the amounts were reflected in the tax audit report; a clerical/software omission caused non-reflection in the return. Given (i) disclosure in the tax audit report/assessment record, (ii) absence of any finding that the payments or explanations were false or the transactions not genuine, and (iii) established case law that bona fide but legally unsustainable claims do not attract penalty, the Tribunal concluded there was no concealment or furnishing of inaccurate particulars. The Tribunal explicitly relied on the reasoning that mere disallowance under section 40A(3) does not establish the culpability required for section 271(1)(c) if particulars were disclosed and the explanation was bona fide. Ratio vs. Obiter: Ratio - Penalty under section 271(1)(c) cannot be sustained where: (a) particulars of the payments in question were disclosed (for example in the tax audit report and/or in the assessment record), (b) payees are identifiable and genuineness of transactions is not doubted, and (c) the assessee has a bona fide explanation (including reliance on exceptions). The Tribunal's adoption of earlier appellate precedents is part of the binding ratio in this context. Obiter - ancillary references to procedural steps (e.g., transmission to AO for verification) are incidental and not part of the core holding. Conclusion: The Tribunal deleted the penalty levied under section 271(1)(c) insofar as it related to disallowances under section 40A(3), holding that disclosure of particulars, identification of payees, absence of doubt as to genuineness, and bona fide belief/explanation precluded a finding of concealment or furnishing inaccurate particulars. Cross-references and aggregate conclusion 1. Issue 1 and Issue 2 are related insofar as both examine whether penal consequences under section 271(1)(c) can be sustained where the asserted inaccuracies either are overturned on appeal (Issue 1) or are based on legally unsustainable but disclosed facts with bona fide explanations (Issue 2). 2. The Tribunal deleted the penalty in respect of both contested heads: the depreciation on goodwill (on appellate reversal of the underlying addition) and the section 40A(3) disallowance (on the basis of disclosure, identification of payees and bona fide explanation), and allowed the appeal.