2026 (1) TMI 76 - AT - Income Tax

Depreciation claim on 'right under service agreement' sparks s.270A misreporting penalty dispute; levy deleted for wrong charge notice.

Penalty under s. 270A was examined for validity where the notice and initiation alleged one form of default but the final levy proceeded on a different, ... Penalty u/s 270A - variance and divergence in the grounds for initiating the penalty - allegation of under reporting of income in consequence of misreporting - levy of penalty under wrong charge - assessee is engaged in development of roads, on build operate and transfer basis in Madhya Pradesh and assessee had claimed depreciation @ 25% on ‘Right under service agreement’ as intangible asset. However, the AO considered it to be not an asset and allowed the project to be amortized HELD THAT:- What ld. DR was unable to defend was that there was apparent variance and divergence in the grounds for initiating the penalty, as to violation for which notice was actually issue and the one for which penalty is actually levied. We are of considered view that if proceedings were initiated invoking subsection (8) of Section 270A of the Act, which is an aggravated form of fiscal violation and notice is for lighter form, then the penalty could not have been levied for aggravated violation. Though vice versa may be legal. We are of further view that as first appellate authority, CIT(A), while dealing with allegation and ground of challenge of levy of penalty under wrong charge CIT(A) cannot substitute the charge and modify the penalty order, as done in the case before us by the CIT(A). The impugned penalty is deleted. Decided in favour of assessee. 1. ISSUES PRESENTED AND CONSIDERED 1. Whether a penalty under section 270A could be sustained where there was an apparent variance between (i) the charge recorded at initiation in the assessment order, (ii) the allegation in the penalty notice, and (iii) the basis actually adopted in the penalty order (under-reporting simpliciter versus under-reporting in consequence of misreporting). 2. Whether the first appellate authority could uphold the levy by rejecting 'misreporting' and effectively substituting/altering the charge to 'under-reporting only' while modifying the quantum of penalty. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Validity of penalty where initiation, notice, and levy proceeded on divergent charges under section 270A Legal framework (as discussed in the judgment): The Court examined the distinction between penalty for 'under-reporting' and the aggravated category of 'under-reporting in consequence of misreporting' under section 270A, including the invocation of subsection (8) for the aggravated form leading to a higher penalty. Interpretation and reasoning: The Court found a material inconsistency in the record: the assessment order recorded initiation for 'under reported' income 'in consequence of misreporting'; the penalty notice called upon the assessee to show cause for 'under reported income'; and the penalty order ultimately imposed penalty by invoking section 270A(8) for 'under reporting income in consequence of any misreporting thereof' at the aggravated rate. The Court held that where proceedings are levied for an aggravated fiscal violation but the notice is framed for a lighter form, penalty for the aggravated violation cannot be imposed. The Court noted that the Departmental Representative could not defend the variance and divergence between the charge of initiation, the notice, and the basis of levy. Conclusion: The penalty could not be sustained because it was levied on an aggravated 'misreporting' footing despite the notice reflecting a lighter charge, rendering the levy unsustainable on the charge actually imposed. Issue 2: Power of the first appellate authority to substitute/modify the penalty charge from 'misreporting' to 'under-reporting only' Legal framework (as discussed in the judgment): The Court addressed the role of the first appellate authority in adjudicating a challenge that the penalty was levied under a 'wrong charge' and considered whether the authority could modify the penalty order by changing the applicable limb of section 270A. Interpretation and reasoning: The first appellate authority sustained the penalty while directing imposition at a lower rate and rejected the plea of inconsistency, but also accepted that 'misreporting' was not established and held section 270A(8) inapplicable, concluding that the penalty was 'initiated' for under-reporting only. The Court held that, when the levy is challenged as being under the wrong charge, the first appellate authority cannot cure the defect by substituting the charge and modifying the penalty order in the manner done. The Court treated this substitution as impermissible, particularly where the original levy was for the aggravated category. Conclusion: The first appellate authority could not validly substitute the charge and modify the penalty from 'misreporting' to 'under-reporting only'; the defect in the levy could not be cured on appeal. The Court therefore allowed the challenge and deleted the penalty.