TaxTMI 
TaxTMI 
2016 (4) TMI 988
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....c) of the Income Tax Act, 1961 without considering the facts and circumstances of the case. The same be deleted. (b) The Learned CIT(A) has erred in confirming that the assessee has concealed /filed inaccurate particulars of Income whereby the assessee is liable for levy of Penalty u/s 271 (1) (c) of the Income Tax Act, 1961 without considering the facts and circumstances of the case. Hence the penalty be deleted. (c) The Learned CIT(A) was failed to consider the explanation and the facts put forth by the Assessee with regard to the error incurred in the filing of Tax Returns. The assessee had also explained that this error was identified by the assessee who had sou moto informed the Learned AO and sought assistance to rectify the default. Hence considering the contention of the assessee which was not to evade tax, the penalty confirmed by the Learned CIT(A) be deleted." 3. The brief facts of the case are that the assessee is an individual and During the course of assessment proceedings u/s 143(3) read with Section 143(2) of the Act, the A.O. observed that the assessee received salary from M/s. AC Nielson Research Services Pvt. Ltd of Rs. 26,376/- and M/s. Hindustan Unilever L....
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....eeping in view their experience (Taxspanner) in filing the return of income with the Revenue, she did not think about verifying the return of income filed by them. The assessee submitted that in the month of July, 2013, when she visited the A.O.'s office to submit the details relating to scrutiny assessment proceedings u/s 143(3) read with Section 143(2) of the Act, then only she came to know that online tax return filing portal "Taxspanner" has committed a mistake in filing the return of income of the assessee with the Revenue for the assessment year 2011-12 and the income filed in the return of income is different from the income reflected in the Form No. 16 received from her employer. The assessee submitted that she realized in July 2013 that the refund of Rs. 4,56,340/- for the assessment year 2011- 12 received form Income Tax Department was wrongly received by the assessee. During the course of assessment proceedings u/s 143(3) read with Section 143(2) of the Act, the A.O. further observed that the assessee has earned commission income from M/s Buniyad Retail Pvt. Ltd. of Rs. 85,270/- which was not offered for taxation. The said information was received by the AO from AIR inf....
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....ssee herself, not the online tax return filing portal "Taxspanner". Before signing an important document like ITR-V, the assessee should confirm whether she is signing on the right document or not. Moreover, in its return of income e-mailed to the assessee, the online tax return filing portal "Taxspanner" sent summary of return filed wherein total income was shown as Rs. 2,34,882 and refund of Rs. 4,24,500, which the assessee has confirmed by signing it. Therefore, the A.O. held that it is a gross negligence on the part of the assessee. Further, the assessee wrongly claimed that this mistake came notice of her in the month July, 2013 , the intimation dated 24.11.2011 u/s 143(1) of the Act was sent to the assessee and subsequently refund of Rs. 4,56,340/- was sent to the assessee vide rectification order dated 13-06-2012 u/s 154 of the Act and it is clear from the facts that the assessee tried to misguide the Revenue and the assessee had mala-fide intention to evade the tax. In support, the A.O. relied on the following decisions:- i) Aggarwal Oil & general Mills Ltd. v. CIT, 20 Taxman 383 (Hon'ble Punjab & Haryana High Court) ii) Pankaj Rathi v. CIT, 13 taxman 115 (Hon'ble Calcu....
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....gence on the part of the online tax return filing portal "Taxspanner" for which the assessee should not be penalized. The assessee submitted that she did not filed revised return u/s. 139(5) of the Act as the time for filing revised return has expired but promptly deposited back the refund amount of Rs. 4,56,340/- on 14/08/2013 and the AO was informed of the same on 19- 08-2013. The assessee contended that A.O. is not justified in invoking the explanation 1(B) to section 271(1)(c) of the Act and levying maximum penalty of 300% for a mistake committed by the professional service provider. Similarly, the assessee submitted that the assessee has purchased a flat from broker M/s Buniyad Retail Pvt. Ltd. and received commission income of Rs. 85,270/- from M/s Buniyad Retail Pvt. Ltd. The assessee submitted that the said commission received from broker M/s. Buniyad Retail Pvt. Ltd is capital receipt and the same was reduced by her from the cost of the flat purchased through broker M/s. Buniyad Retail Pvt. Ltd at "Kensington Park" at Jaypee Greens Sector-133. The assessee submitted that the above receipt of Rs. 85,270/- is a discount on its investment in the house property which amounts t....
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.... knowledge. Secondly it is clear that the assessee had not intimated the tax preparer about the interest income and the commission income earned by her, which should have been included in the return. The A.O. has correctly brought out that the commission earned by the assessee cannot be treated as capital receipt, especially when the payer of the commission had clearly mentioned the same as commission income of the assessee. The CIT(A) accordingly held that the action of the A.O. in holding that the assessee is liable for penalty u/s 271(1)(c) of the Act is correct. However nothing has been brought on record by the AO to justify the levy of penalty at 300% of the tax sought to be evaded. Penalty of 300% of tax sought to be evaded is levied only in the rarest of the rare cases, which has not been made out to be the case here and the CIT(A) directed the A.O. to restrict the levy of penalty at 100% of the tax sought to be evaded, vide orders dated 23-05-2014. 6. Aggrieved by the orders dated 23-05-2014 passed by the CIT(A), the assessee preferred an appeal before the Tribunal. 7. The ld. Counsel for the assessee submitted that the A.O. has levied penalty at the rate of 300% of the t....
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....ith the bank and assessee did not pay much attention to check the details as she was busy with new born baby and with her work at the time of receiving of refund.She came to know about the mistake in July 2013 when she visited office of the AO in connection with scrutiny proceedings and immediately on realizing the mistake committed by the online tax return filing portal 'Taxspanner" , she immediately deposited the said refund of Rs. 4,56,340/- to the credit of Government on 14/08/2013 and intimated to the AO on 19/08/2013. The copy of challan is placed in paper book filed with the Tribunal. The ld counsel submitted that by the time she realized the mistake , the time for filing revised return u/s. 139(5) of the Act had already expired. The ld. Counsel contended that A.O. is not justified in invoking the Explanation 1(B) to section 271(1)(c) of the Act and levying maximum penalty of 300% for a mistake committed by the professional service provider. Similarly, with respect to the commission income, the assessee counsel submitted that the assessee has purchased a flat from broker M/s Buniyad Retail Pvt. Ltd. and received discount as commission of Rs. 85,270/- from M/s Buniyad Retail ....
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....tarily of her own to deposit the money refunded to her. If this case would not have come in scrutiny u/s 143(3) read with Section 143(2) of the Act, then the assessee would not have deposited the amount with Government Treasury, which was refunded to her by the Revenue. In support, the ld. D.R. relied upon the decision's of Hon'ble Supreme Court in the case of Mak Data Private Limited v. CIT (2013) 38 taxmann.com 448(SC) and UOI v. Dharmendra Textile Processors (2008) 13 SCC 369(SC). 9. We have considered the rival contentions and also perused the material available on record including the judicial pronouncements cited by both the parties. We have observed that the assessee is a salaried employee and received salary from M/s. AC Nielson Research Services Pvt. Ltd of Rs. 26,376/- and M/s. Hindustan Unilever Limited of Rs. 21,22,182/- totaling Rs. 21,48,558/- during the year. There was an error/mistake in punching salary, while filing return of income , received by thee assessee from Hindustan Lever Limited as 'Rs.2,09,614/-' by mistake instead of correct salary of 'Rs.20,96,914/-' and also not taking into effect any other income of (-) Rs. 1,51,726/- reported by the assessee and he....
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.... assessment year 2009-10 to 2015-16 except assessment year 2011-12, no attempt has been made by the assessee to claim refund of taxes from the Revenue. The assessee derives income mainly from salary and her salary income is subjected to deduction of tax at source and she could under normal circumstances gain by filing in-accurate particulars / concealment of income by way of claiming refund of taxes from revenue. The above chart clearly shows that the conduct of the assessee is bona-fide and it is due to the error and mistake in the assessment year 2011- 12 as contended by the assessee , return of income was wrongly filed .As soon as the assessee came to know about the error/mistake , she immediately took steps to deposit back the refund of taxes so received with the Government Treasury on 14-08-2013 and intimated the AO also vide letter dated 19-08- 2013. We find that the conduct of the assessee is bona-fide and there is no mala-fide intention on the part of the assessee although error/mistake took place in filing return of income for assessment year 2011-12 under appeal. If the assessee would have been 'habitual tax evader' as contended by the Revenue , then her conduct would hav....
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....niyad Retail Pvt. Ltd. and received discount as commission income of Rs. 85,270/- from M/s Buniyad Retail Pvt. Ltd. and the assessee submitted that the said discount as commission income received from broker M/s. Buniyad Retail Pvt. Ltd is capital receipt and the same was reduced by the assessee from the cost of the flat purchased through broker M/s. Buniyad Retail Pvt. Ltd in "Kensington Park" at Jaypee Greens Sector-133. The view adopted by the assessee is a plausible bona-fide view although the same did not found favour with the Revenue and the assessee chose not to file appeal against the said additions but that does not mean that every claim which is not sustained by the revenue will make the tax-payer liable to penalty u/s. 271(1)(c) of the Act. The claim of the assessee was plausible and bona-fide and we hold that no penalty can be imposed u/s 271(1)(c) of the Act on this count. With respect to the amount of Rs. 16,803/-, it was stated that inadvertently the assessee failed to declare the interest received on savings bank account amounting to Rs. 16,803/- and the omission was neither intentional nor willful.The amount involved is also trivial. In our considered view, there....