2018 (6) TMI 694

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....2,187/- levied under section 271(1)(c) of the Act by the learned AO and therefore the learned AO should be directed to delete the penalty. 2. That the appellant craves liberty to add, amend, alter and delete any grounds of appeal before the final hearing." 5. Facts of the case in brief are that a search and seizure operation was conducted in Jaksons Group of cases on 10.02.2010 and the assessment proceedings were initiated by issuing the notice u/s 153C of the Act on 02.06.2011. However, no return was filed in response to the notice u/s 153C of the Act. Therefore, the assessment was completed u/s 144 r.w.s. 153C of the Act on 22.12.2011 at an income of Rs. 3,40,38,250/- and book profit u/s 115JB of the Act at Rs. 1,00,53,935/-. Addition of Rs. 1,06,72,728/- on account of unsecured loans and Rs. 1,33,12,904/- on account of disallowance of expenses were made to the total income of the assessee company. However, in the first appeal, the ld. CIT(A) deleted the addition of Rs. 1,06,72,728/- made by the AO on account of unsecured loans and also allowed relief of Rs. 96,44,708/- out of disallowance of expenses amounting to Rs. 1,33,22,580/- (wrongly mentioned as Rs. 1,33,12,904/-). Th....

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....iture in support of which he was unable to furnish the requisite bills. A mere making of the claim, which is not sustainable in law by itself, will not amount to furnishing of inaccurate particulars regarding the income of the assessee. Such claim made in the return cannot amount to inaccurate particulars. In this regard, reliance is placed on the judgment of Supreme Court in Reliance Petroproducts (P.) Ltd. [(2010) 322 ITR 158 (SC)]. (iv) That the Books of accounts are audited under Companies Act and Income Tax Act under section 44AB and which have been relied for filing of the return of income and therefore it cannot be treated that we have filed inaccurate particulars of income and accordingly, the return of income has been filed on the bonafide belief and opinion of the tax consultant and for which no penalty u/s. 271(1)(c) of the Act can be levied. In this regard reliance is placed on the following judgments;- 1. Hon'ble Gujarat High Court in the case of BTX Chemical (P) Ltd. vs. CIT (288 ITR 196)(Guj), wherein it was held that, "assessee having claimed of loss on account of destruction of capital assets on account of fire under bona fide belief that the loss was rev....

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....e. Ld. AR has raised the argument concealment penalty is not imposable as there was no intention to evade tax. This argument is not acceptable as the law laid down in Dilip N Shroff case [291 ITR 519 (SC)], wherein it was held that mens rea was an essential requirement for imposing concealment penalty u/s 271(1)(c), was overruled in Dharmendra Textile Processors case [306 ITR 277 (SC)]. Ld. AR has also raised the argument that as the income was assessed u/s 115JB, concealment penalty was not imposable in the case. This argument also cannot be accepted as it is a case where the returned income under the normal provisions has been altered in assessment / appeal, and although tax has been levied on the book profit computed u/s 115JB, that cannot be a reason to claim that inaccurate particulars have not been filed or that concealment penalty cannot be imposed for this reason. If this argument were to be accepted, all companies / corporate taxpayers liable to pay tax under the MAT provisions would be inclined or incentivized to manipulate their income / loss under the normal provisions of the Act. Therefore, the facts of the case need a closer examination. 4.2 I find that he disallow....

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....llant gets relief of Rs. 8,31,553/-." 8. Now the assessee is in appeal. The ld. Counsel for the assessee submitted that the income of the assessee was subjected to book profit u/s 115JB of the Act and the income has been assessed at book profits by deeming the same to the total income of the assessee. Therefore, the penalty imposable u/s 271(1)(c) of the Act could only be levied in respect of any adjustment/addition/disallowance made while computing such book profits. The reliance was placed on the judgment of the Hon'ble Delhi High Court in the case of CIT Vs M/s Nalwa Sons Investment Ltd. (2010) 327 ITR 543. The reference was also made to the Circular No. 25/2015 dated 31.12.2015 issued by the CBDT, copy of which was furnished during the course of hearing which is placed on the record. It was also stated that the appeal of the assessee on quantum has been decided by the ITAT Delhi Bench 'C', New Delhi in ITA Nos. 3642 to 3645/Del/2014 for the assessment years 2007-08 to 2010-11 respectively vide order dated 25.08.2017 (copy of the said order was furnished which is placed on record). 9. In his rival submissions, the ld. Sr. DR strongly supported the orders of the authorities bel....