TaxTMI 
TaxTMI 
2019 (4) TMI 1522
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.... Assessment Year (AY) 2014-15 vide order dated 22/5/2017. 2. The brief facts of the case are that the assessee, a cooperative-society in the business of processing and marketing of milk and milk products under the brand name 'Verka', furnished its' return of income for the relevant year on 03.11.2014 at a loss Rs. 469.69 lacs. During assessment proceedings for the relevant year, it was found to have claimed per its' said return gratuity expenses, already claimed per its' return for AY 2013-14. The same (Rs.47,29,674) were accordingly disallowed vide order u/s. 143(3) dated 04.11.2016 (copy on record). In penalty proceedings u/s. 271(1)(c), initiated for furnishing inaccurate particulars of income per the assessment order, it was explained ....
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....Ltd. [2011] 335 ITR 558 (P&H). The same did not find favour with the Assessing Officer (AO) as the blame for wrong claim could not be passed off as a clerical mistake without any responsibility being taken by the assessee (or it's Management). The payment had been made during the current year, within a gap of a few months of making the claim for the immediately preceding year. Penalty was accordingly imposed by him at the minimum rate prescribed under the Act, i.e., at 100% of the tax sought to be evaded, at Rs. 14.61 lacs. The same stood confirmed in appeal as there was no bona fide reason for the assessee to have claimed an expense, already claimed, again, relying on the decision in CIT v. Zoom Communications Pvt. Ltd. [2010] 327 ITR 510 ....
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....2009), to note two. This is also the basis and the purport of the decision in Zoom Communications Pvt. Ltd. (SC), relied upon by the Revenue. The reason is simple. It is only the assessee who furnishes his return of income and, besides, is in the know of his affairs, so that the element of deliberateness is implicit in the income as disclosed, including the deduction/s claimed. As such, where the return is found to bear a wrong claim, the onus is on the assessee to exhibit his bona fides in preferring that claim, or else he is deemed by law to have concealed the particulars of his income, attracting penalty u/s. 271(1)(c), which is pegged with reference to the tax sought to be evaded, ranging from a minimum of 100% to a maximum of 300% ther....
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.... host of decisions, some of which stand cited supra. It could in law even otherwise not as, where not in agreement, would have to refer the matter to a larger Bench, with in fact some decisions afore-referred being by its' larger benches. 3.2 Continuing further, admission of a mistake itself implies that the assessee has no explanation, so that Explanation 1 to section 271(1)(c) would, for sure, get attracted. A 'mistake', however, may be without any intention whatsoever to evade tax, a notion implicit in Explanation 1, besides being integral to the concept of levy of penalty. A bona fide mistake eliminates or removes the element of deliberateness on which penalty is premised or it's edifice rests. The limits to the concept of a 'mistake' ....
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....s character is of a public institution; (b) it is mandated to work on a 'no profit no loss basis', even as some profit or, as the case may be, loss may arise out of its operations; (c) it has incurred a loss of Rs. 392.44 lacs during the current year, i.e., exclusive of the excess claim of gratuity; (d) it's loss for the next year, i.e., AY 2015-16, as informed by the ld. counsel, Sh. Malhotra during hearing, is to the tune of Rs. 250 lacs; (e) it is operating in a competitive environment, so that the recoupment of loss/es, particularly considering that it is a Government institution, is itself a challenge inas- much as it would first be required to break even; (f) the assessee is well served by statutory and tax auditors as well ....
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.... for the current year being at an amount perceptibly higher than that for the immediately preceding year, so that it ought to have been inquired into. Further, and more importantly, inasmuch as it also establishes the bona fides of the assessee, the provision (for gratuity) continues to be unadjusted, i.e., outstands in accounts at the same amount at which it outstood as at 31/3/2013, i.e., the end of the immediately preceding year, so that even the amount disallowed (for that year) or provided for in excess - being not ascertained at the relevant time, had not been reversed even as the payment had been made at a lesser amount during the current year. There is, thus, clearly a dereliction of duty on the part of the Auditors who had apparent....