TaxTMI 
TaxTMI 
2015 (10) TMI 741
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and documents were found and seized/impounded as per panchnama/order of respective dates. The ld Assessing Officer observed that in this case, the assessment was completed U/s 153A read with Section 143(3) of the Act. Notice U/s 153A was issued for A.Y. 2006-07 on 25/01/2008 and assessee was asked to prepare a true and correct return of his total income in respect of his assessable for the year under consideration in the form prescribed in Rule 12 of the Income Tax Rules, 1962 (in short the Rules). In response to notice U/s 153A, return declaring income of Rs. 23,68,116/- was filed on 28/2/2008. In original return U/s 139(1), the assessee had declared income of Rs. 20,14,520/-, which was filed on 31/10/2006. The assessee had disclosed Rs. 3,53,599/- salary received from M/s RMC Gems Thai Co. Ltd., Bangkok in return of income filed in response to notice U/s 153A. The assessee served as employee in M/s RMS Gems Thai Co. Ltd., Bangkok. He had received 105000 Thai Bhat per month from 01/01/2006 to 31/12/2006. The ld Assessing Officer further observed that salary for the three months pertaining to the F.Y. 2005-06 was surrendered in the year under consideration. This income from salary....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Officer is satisfied that any person has concealed particulars of income or furnished inaccurate particulars of such income, or where in respect of any facts material to the computation of the total income of any person under this Act, such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer to the false, or such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bonafide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him, then the case of the assessee comes within the purview of Section 271(1)(c) of the Act. As per law, the assessee was required to give complete and true details of his income including all/any income arising to him outside India i.e. global income. However, the assessee failed to furnish such true and complete details of income by omitting to furnish details in respect of his salary income earned from RMC Gems Thai Co. Ltd., Bangkok. The ld Assessing Officer further held that mistake of law is not excuse, ignorantia juris non excusat and anyone who commits it, does it at his own peril. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....own in the original return. Similarly regarding wrong claim of deduction U/s 54F of IT Act, amounting to Rs. 1764952/-, there is no dispute that such claim was not allowable as per provisions of IT Act and even then the appellant claimed the same. Such wrong claim was made both in original return and return filed in compliance to notice U/s 153A of the IT Act. It may be noted that the assessee admitted such wrong claim during the assessment proceedings only when vide ordersheet entry dated 18/03/2009, the A.O. specifically required the assessee to justify such claim. In this background it is to be seen whether such issues constituted concealment of income/furnishing of inaccurate particulars of income or not. The A.O.'s contention is that such mistake were not bonafide and that it tantamount to concealment of income/furnishing of inaccurate particulars of income. The appellant also admitted to have omitted such income by way of salary being not shown in the return and wrong claim U/s 54F of IT Act but it is stated that salary was paid/received in Bangkok and tax was deducted thereon. The appellant further stated that he was under bonafide belief that such salary income was not to b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly confirmed." 4. Now the assessee is in appeal before us. The ld AR of the assessee reiterated the arguments made before the ld CIT(A). He has further submitted that the assessee never agreed to make addition/disallowance and no penalty could be imposed nor he argued that as default was not willful so penalty is not imposable. The case law cited by the ld CIT(A) are not on facts of the case and so the same are not applicable. The assessee has neither furnished inaccurate particulars of income nor concealed any particulars of income. The assessee was in bonafide belief that on the salary income in Bangkok due tax was deducted and paid there and he has not brought the income in India and therefore, the said salary income is not includible in the return of income being filed in India. The assessee voluntarily included the income in return filed u/s 153A when he was apprised of the correct legal position which was not known to him nor was the same brought to his notice by his counsel when he filed original return. Even though salary income was includible while determining total income in India yet he was entitled to credit of taxes paid thereon in Bangkok in accordance with provisio....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... bogus claim. In respect to above two additions, assessee has furnished explanation and that explanation was not found to be factually incorrect or false. It is settled law that the penalty on the ground of concealment of particulars or non-disclosure of full particulars can be levied only when in the accounts/return on item has been suppressed dishonestly or the item has been claimed fraudulently or a bogus claim has been made. When the facts are clearly disclosed in the return of income, penalty cannot be levied and merely because an amount is not allowed or taxed to income, it cannot be said that the assessee had filed inaccurate particulars or concealed any income chargeable to tax. Further, conscious concealment is necessary. Even if some deduction or benefit is claimed by the assessee wrongly but bona fide and no mala fide can be attributed, the penalty would not be levied. The support is derived from the judgement of Apex Court in case of K.C. Builders Vs. ACIT (2004) 265 ITR 562 (SC) and CIT Vs. Skyline Auto Products P. Ltd. (2004) 271 TIR 335." The assessee before CIT (A) relied on the Hon'ble Apex Court judgment in case of CIT Vs. Reliance Petro Products P. Ltd. (201....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... which deserves to be deleted. 5. At the outset, the ld DR has vehemently supported the order of the ld CIT(A). 6. We have heard the rival contentions of both the parties and perused the material available on the record. It is a fact that the assessee had not disclosed the salary received from RMC Gems Thai Co. Ltd., Bangkok at Rs. 3,53,599/- but disclosed after search proceeding carried out in case of assessee and return filed U/s 153A of the Act. The assessee had shown long term capital gain on sale of agricultural land, Kalyan colony plot and plot of Chitrakoot in the computation of income and taxable long term capital gain was also claimed by the assessee exempted by making investment in residential house. However, the assessee purchased another residential house other than the new assets within a period of one year after the date of transfer of original assets. The assessee purchased another residential house plot NO. 5-K, Kalyan Colony, Jaipur for Rs. 24,72,700/- on 11/5/2006, therefore, the assessee has claimed excess exemption U/s 54F(i) of the Act. The argument of the assessee that the assessee had disclosed salary received from RMC Gems Thai Co. Ltd., Bangkok voluntaril....