2026 (1) TMI 464 - AT - Income Tax

Business loss reclassified as speculative loss: s.270A under-reporting penalty struck down; no concealment or inaccurate particulars shown.

Penalty under s. 270A for 'under-reporting' was held unsustainable where the assessee's claimed business loss was not disallowed but only recharacterised ... Penalty u/s 270A - penalty @50% of tax liability for under reporting income - AO while passing the assessment order treated the business loss as a speculative loss - if the business loss suffered and claimed by assessee in its computation of income, which was not accepted by AO and treated the same as a speculative business loss, thereby changing its character would automatically lead to under reporting of income or it was merely change of opinion? - HELD THAT:- Admittedly, the ‘loss’ which was claimed as ‘business loss’, was accepted, though it was accepted as a ‘speculative loss’. We find that almost similar set of fact, in CIT Vs Bhartesh Jain [2010 (4) TMI 142 - DELHI HIGH COURT] held that when addition was made by AO on account of treating the business loss claimed by the assessee as speculative loss and imposed penalty, which was deleted by Tribunal. And of appeal before High Court by revenue, it was held that penalty relating to the change of treatment from business loss to speculative loss was concerned, the Tribunal rightly applied the law stated in CIT vs Auric Investment & Securities Ltd [2007 (7) TMI 276 - DELHI HIGH COURT] as held that mere treatment of business loss as speculation loss by AO did not automatically warrant inference of concealment of income. It was also held that there was nothing on record to show that in furnishing its return of income, the assessee either concealed its income or had furnished any inaccurate particular of income. As in DCIT Vs Shree Ram Electroplast (P) Ltd [2017 (8) TMI 653 - ITAT KOLKATA] also held that merely because losses were not allowed to be set off against normal business income and was treated as a speculative loss, it was only a change of sub-head of loss and not furnishing of inaccurate particulars of income invoking penal provision. Thus, in view of aforesaid factual and legal discussions, we do not find any justification in levying penalty under section 270A for treating the assessee of guilty of under reporting of income. Objection of lower authority that no further appeal is filed by the assessee against the additions in quantum assessment - We find no merit is such stand of lower authorities, as the penalty proceedings are separate and independent. In the penalty proceedings the AO is required to show that under reporting of income was wilful act of the assessee. Here the facts of the case in hand are quite different; the assessee reported all the facts of his case, which was not accepted by the AO. We also find merit in the contention of the ld AR of the assessee as there was no demand of tax, so the assessee has not challenged the addition in further appeal. Hence, the ground No. 3 of appeal is allowed. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether penalty for 'under-reporting of income' under section 270A could be sustained where the claimed loss was not disallowed in quantum but only recharacterised from 'business loss' to 'speculative loss' by the assessing officer. (ii) Whether the assessee's failure to challenge the quantum treatment of the loss (and acceptance of the assessment without appeal) by itself justified sustaining penalty under section 270A, despite penalty proceedings being separate and requiring proof of under-reporting on the assessee's part. 2. ISSUE-WISE DETAILED ANALYSIS Issue (i): Sustainability of section 270A penalty where loss was only recharacterised (business loss to speculative loss) Legal framework: The Court proceeded on the basis that section 270A penalty requires a legally sustainable finding of 'under-reporting of income' attributable to the assessee, and that the penalty determination must examine whether the assessee's conduct amounted to under-reporting rather than a mere difference in characterization of a disclosed claim. Interpretation and reasoning: The Court treated the determinative question as whether changing the 'character' of an already disclosed and claimed loss (from business loss to speculative loss) 'would automatically lead to under reporting of income' or was merely a 'change of opinion.' It found that the loss itself was not rejected as non-existent; rather, it was 'accepted,' but as a speculative loss. On the facts, the assessee had disclosed the forward contract settlement loss in its accounts and computation, and the dispute arose from the assessing officer's view on the nature of the transaction (no actual movement/delivery of goods) leading to a different tax characterisation. The Court applied the reasoning (as adopted in its discussion) that mere reclassification of a loss head/sub-head, without anything on record showing concealment or furnishing of inaccurate particulars, does not justify a penal inference. Accordingly, the Court concluded that levying penalty for 'under reporting' in such circumstances lacked justification. Conclusion: Penalty under section 270A was held unsustainable where the assessing officer merely treated the disclosed business loss as speculative loss by changing its character/sub-head, without material showing concealment or furnishing of inaccurate particulars; such recharacterisation did not, by itself, establish under-reporting of income. Issue (ii): Effect of not filing quantum appeal on validity of penalty Legal framework: The Court proceeded on the principle that penalty proceedings are 'separate and independent,' and that in penalty proceedings the assessing officer must establish that under-reporting was attributable to the assessee's conduct (treated by the Court as requiring a culpable element rather than merely an adverse quantum view). Interpretation and reasoning: The lower authority relied on the assessee's non-challenge to the quantum treatment of the loss. The Court rejected this as a basis to sustain penalty, holding that non-filing of further appeal did not relieve the assessing officer of demonstrating under-reporting in penalty proceedings. It emphasised that, on the facts, the assessee 'reported all the facts' and the claim was disallowed/recharacterised only because the assessing officer did not accept the explanation. The Court also accepted the practical explanation that no tax demand arose, which explained why the assessee did not pursue a quantum appeal; this did not convert a legal dispute on characterisation into under-reporting warranting penalty. Conclusion: The assessee's failure to appeal the quantum treatment did not justify penalty; penalty could not be sustained merely because the assessee accepted the assessment, particularly where full facts were disclosed and the dispute was only on characterisation of loss and no tax demand arose.