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2018 (1) TMI 811
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....s. 25,00,000/- by ignoring that the assessee has not voluntarily withdrawn the benefit claimed under Section 54F of the Act, but has revised the computation only after he has been cornered in the scrutiny proceedings and that too after one and a half year of the scrutiny proceedings? (2) Whether the penalty under Section 271(1)(c) of the Act can be levied on the assessee in the present case in which there was both the case of furnishing of inaccurate particulars of income by making the wrong claim under Section 54F of the Act and the assessee has also deliberately and willfully concealed the particulars of various components of his income?" The assessee is an individual engaged in the business of manufacture of sale and playing cards. On 17.11.2012, he filed his return of income for A.Y 2012-13. Initially, the said return was processed under Section 143(1) of the Act. In that return the assessee had disclosed long term capital gain at Rs. 1,11,14,748/- but at the same time he had claimed deduction in respect of the same. Later, scrutiny assessment proceedings were initiated under Section 143 (3) of the Act. It is on record that on 22.12.2014 the assessee was asked to....
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....s per new counsel advise assessee revised his total income and tax liability paid thereupon. A covering letter revising the income on 16.2.2015 submitted before the assessing authority to this effect. The assessee acted upon bonafide regarding this claim of exemption u/s 54-F as per advise of his old counsel. The details in original return were filed by the assessee regarding sale of impugned Shyam Nagar property and claim of exemption u/s 54-F as per advise of old counsel in his original computation of total income. No facts were concealed. But as soon as new engaged counsel advised and pointed out the mistake of claiming exemption, the income is revised immediately and due tax paid thereupon. Therefore on amount assessed by your goodself vide assessment order dated 28.3.2015 under the head income from "LONG TERM CAPITAL GAIN" amounting Rs. 1,13,08,351/- is an income already included by the assessee, the same as revised income, during the course of assessment proceedings. Therefore, the addition is not an concealment on his part but bonafide inclusion in his total income by way of revision as per advise of new counsel. 4. That under the facts and circumstances as stated h....
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....e of his previous counsel. When asked to produce the counsel for examination, the assessee submitted that his counsel Shri Raj Kumar Gupta has expired on 16.10.2014 and the assessee was not in a position to produce his at this stage. Therefore, the assessee could not furnish any evidence in support of his claim with regard to the previous counsel. The claim of the assessee regarding wrong advice given by the previous counsel is prima facie not appreciable. No counsel is supposed to give any wrong advice to his client. It is the assessee who is finally responsible to make any claim in the return of income, whether right or wrong. Moreover, the assessee also failed to substantiate his claim on this account. Therefore, from the above discussion, it is amply evident that the assessee has deliberately and willfully concealed the particular of various components of his income which were detected by the department during the course of assessment proceedings in his case. By this act, assessee exposed himself for imposition of penalty under Section 271(1)(C) of the Act." (emphasis supplied) Thus, the assessing officer recorded a finding that the revised computation filed by the ....
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....t upon the Assessing Officer to specify whether the assessee has concealed any income which has been unearthed by the Department or the Assessing Officer has to point out whether the assessee has furnished inaccurate particulars of income. Here in this case, from a perusal of the order of the Assessing Officer, which has been reproduced above, we note that the Assessing Officer has specifically made a finding that "the assessee has furnished inaccurate particulars and concealed such income". The Assessing Officer erred in not specifying the charge on which the penalty has been attracted and spell out the facts supporting his finding in it against the assessee. It should have been either concealment of income or furnishing of inaccurate particulars of income not both since both charges are different. Here in this case both the charges have been leveled together without spelling out what specific charge was established by the Assessing Officer. For the aforesaid view, we rely on the cases of CIT Vs. Manu Engineering Works, 122 ITR 306 (Guj.) and New Sorathia Engineering Co. Vs. CIT, 282 ITR 642 (Guj.). In view of the above, we are inclined to delete the penalty levied under Section 2....
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....; or 'avoid litigation' or to find 'amicable solution' etc. According to learned counsel for the revenue, the assessee never discharged his burden to prove that there was no concealment of income by him. He has further relied on a judgment of the Rajasthan High Court in the case of J.P. Sharma and Sons Vs. Commissioner of Income Tax, Rajasthan reported in (1985) ITR 333 (Raj.). In particular reliance has been placed on the following passage of that judgment. "If the ITO, as a result of investigation made by him during the assessment proceedings, discovers that inaccurate particulars have been supplied by the assessee or there is an omission to supply the correct particulars on his part and the revised return is filed by the assessee after such a discovery is made by the ITO, then, of course, in such circumstances, the filing of the revised return cannot remove the effect of contumacious conduct on the part of the assessee while filing the original return and penalty is leviable in such a case." "The relevant question is as to what was the intention of the assessee at the time of filing of the original return and if the assessee honestly and bona fi....
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....4 of the order: "I am of the opinion that it will have to be said that the assessee had concealed it's income and/or that it had furnished inaccurate particulars of such income". Now, the language of "and/or" may be proper in using a notice as to penalty order or framing of charge in a criminal case or a quasi criminal case, but it was incumbent upon the IAC to come to a positive finding as to whether there was concealment of income by the assessee or whether any inaccurate particulars of such income had been furnished by the assessee. No such clear-cut finding was reached by the IAC was liable to be struck down"." (emphasis supplied) Normally, penalty under Section 271(1)(c) may be imposed either if the assessee had concealed the particulars of his income or it had furnished inaccurate particulars of it's income. In case the assessing officer alleged 'concealment' of such particulars it would have to be alleged and established as a fact that the assessee did something so as to hide or not disclose such particulars. Similarly, in case the assessing officer alleged furnishing of inaccurate particulars of income he would have to establish which pa....
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....pra) is wholly distinguishable as in that case as a fact it was found that positive finding had not been recorded by the assessing officer either as to concealment or as to furnishing inaccurate particulars of income by that assessee. In the present case a positive finding of concealment of particulars of income has been recorded by the assessing officer. However, the issue whether the charge of concealment of particulars of income could survive independently or despite the observation made by the assessing officer in the later part of the penalty order has not been examined by the Tribunal. Thus, though the charge of furnishing inaccurate particulars of income may be held to be totally unfounded on facts and reasoning recorded by the assessing officer, yet, in the facts of this case, the charge of concealment of particulars of income being independent of the charge of furnishing inaccurate particulars of his income was specifically found established by the assessing officer. The Tribunal has erred in not examining that issue. Therefore, according to us, the Tribunal has erred in setting aside the entire penalty order. It should have examined the other grounds of appeal raise....