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2023 (1) TMI 620
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.... r.w.s.. 271(1)(c) of the Act is quite vague and did not at all specify which limb of section 271(1)( c) of the Act, the penalty proceedings had been initiated i.e. whether for concealment particulars of income or furnishing of inaccurate particulars of income. The impugned penalty based on such a notice being contrary to the provisions of law and facts kindly be quashed.'' 2.1 During the course of hearing, the ld. AR of the assessee has not pressed the Ground No.3. Hence, the same is dismissed being not pressed. 3.0 Brief facts of the case are that the assessee filed the return of income for the assessment year under consideration on 30-03-2010 at a total income of Rs.80,56,970/-. Subsequently, the assessee revised return on 31-03-2011 declaring income of Rs.1,03,90,360/-. Hence, the case of the assesee was completed u/s 143(3) of the Act on 31-10-2011 at a total income of Rs.1,03,90,360/-. However, the ld. CIT(A) vide order dated 21-04-2015 dismissed the appeal filed by the assessee. 3.1 During penalty proceedings u/s 271(1)(c) of the Act, the AO noted that the assessee declared income from salary from Essar Investment Ltd. and claimed interest u/s 24(b) of Rs.1,50,000/- on se....
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....appellant. Ground No. 01 to 03 are being taken up together as they are interrelated. On perusal of overall facts, it is seen that the Assessing Officer treated the income to extent of Rs. 23,23,440/.7 as concealed income for reason that this income was declared in the revised return filed on 31.03.2011 whereas notice under section 143(2) was already issued on 18.10.2010. Ld. Authorized Representative argued that declaration of income was voluntarily made. Notice under section 143(2) only required the assessee to submit evidence in support of return. No specific query with reference to non-declaration of the various income was ever raised. 2.3.1 On perusal of overall facts, it is seen that the appellant has filed revised return only after issue of notice under section 143(2). If this notice was not issued, the appellant would not have revised his return. In fact, he revised return on 31.03.2011 though notice under section 143(2) was issued on 18.10.2010 i.e. only after 5 months. Therefore, it cannot be said that revised return was filed voluntarily by assessee. 2.3.2 Further, Assessing Officer in assessment order initiated penalty by specifically mentioning that assessee has con....
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....1) was issued only on 06.09.2011 i.e. much later to the date of filing of the revised ROI 31.03.2011. Hence the question of detection of the discrepancy by the AO does not arise in the instant case. The assessing officer in the assessment order as also in the penalty order, if any, nowhere recorded any finding and nor refered any specific query raised by him nor it was a case of survey / search or a case of getting information from a third party) and it was the assessee itself who, on its own declared the income. The ld. CIT(A) did not judicially appreciate such contention. 2.2 Legally speaking, the revised computation / return of income might not be admissible for technical reasons yet it was a good material admittedly available on the record of the AO showing the fact that the assessee had included and always intended to include such income in its taxable total income and it is only such material, which has been made a basis and is the starting point by the AO. The AO has proceeded only w.r.t. such material. He has not only accepted the figures mentioned in the revised computation / return of income but also assessed the same. It is not disputed that the entire amount of the ....
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....But it appears, no enquiry was made by the AO prior thereto. Thus, all the facts of our case are similar to the said case. 3.2 In the case of CIT v/s Shankerlal Nebhumal Uttamchandani (2009) 311 ITR 0327 (Guj) (DPB 3-6), it was held that: "Penalty under s. 271(1)(c)-Concealment-Revised return filed before detection of concealment-Tribunal has found that though certain queries were raised and put to the assessee, no particular item of concealed income was specifically pinpointed-As a matter of fact the process of detection was not complete till the date when the assessee filed revised returns surrendering the amounts reflected in various bank accounts in the names of his family members as his own income from undisclosed sources-There is no material on record to indicate that the aforesaid finding of the Tribunal is incorrect in any manner whatsoever-Further, Tribunal has also found that very same amounts have already been assessed along with interest in the hands of the family members and those family members have never admitted that they were benamidars of the assessee-Hence, even the Department is not certain, as to who is the right person assessable to tax qua the said income....
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....t of TDS certificates, related income could not be noticed or sometime it may also be inadvertent error of the ld. C.A. In these circumstances thus, it is difficult to conceive that in absence of the relevant details how the assessee can be charged with the blame of the concealment. The assessee accordingly, after waiting for the uploading of the Form-26AS could file the original return only on 30.03.2010 (PB 1-3) i.e. before the due date u/s 139(4). It is only at a later point of time, when the assessee could obtain TDS certificates, he revised his ROI immediately. The revised ROI was filed on 31.03.2011 (PB 4) when additional income of Rs. 23.33 Lakh was declared, consisting of the interest on FDR of Rs.10,43,740/- (interest of Rs.2,71,133/- from ING Vysya Bank Ltd.(PB-22), Interest of Rs.56,491/67 from the Lakshmi Vilas Bank Ltd and Rs.7,18,122/- is maturity amount wrongly offered) apart from rental and other income which was noticed from Form-26AS reflecting the entries uploaded by the Deductors / Payers in their TDS returns. Fortunately, again in the revised TDS returns the Lakshmi Vilas Bank the figure of Rs.7,72,571/73 was replaced by of Rs.56,491/67 as per Form-26AS (PB-45)....
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....erest on FDR of Rs.7,18,122/-. 5.4 This was informed to the AO also during assessment proceeding on 25.10.2011 (PB-21), but the AO ignored. Accordingly, the ld. C.A. also filed an application for rectification u/s 154 of the I T Act before the AO on 21.11.2011 to get the mistake rectified by reducing the income wrongly declared to the extent of 7,18,122/- (Rs.7,72,570/- less Rs.54,448/-) but still remains pending till date to the best of our knowledge. 5.5 Once, there was no income at all of Rs.7,18,122/- there cannot be any question of imposition of penalty u/s 271(1)(c) w.r. thereto We may clarify that revision of income was not at all necessitated because of the issuance of the notice u/s 143(2) on dated 18.08.2010 (refer AO order u/s 143(3) Pg-1) because there was no specific query raised by the AO upto that point of time so as to make the assessee wiser but it was an move taken by the ld. C.A. himself. 6. TDS suffered income is not concealed income: 6.1 Pertinently, the entire amount was subject to TDS and even the payers / deductors of such incomes to the assessee have duly made Tax Deduction at Source being Rs.2,17,620/- on Rent, Rs.19,261/- on consultancy fee, Rs.33....
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....d not file his return - Whether since revenue could not controvert assessee's plea and further assessee had paid TDS on salary and advance tax on his royalty income and after adjusting same, balance amount of tax along with interest was also deposited, it could be held that assessee had not concealed particulars of his income - Held, yes - Whether therefore, penalty imposed on assessee was to be deleted - Held, yes" 6.2.3 PCIT vs. Trisha Krishnan [2019] 111 taxmann.com 97 (SC) (DPB 11) "Section 4, read with section 271(1)(c), of the Income-tax Act, 1961 - Income - Chargeable as (Advances) - Assessment year 2010-11 - Assessee was a Cine artist - For relevant year, assessee filed her return declaring certain taxable income - Subsequently, assessee filed a revised return admitting additional income - Difference between income originally declared and total income admitted in revised return represented advance received by assessee in said assessment year from various cinema producers towards work to be done by her - In course of assessment, Assessing Officer opined that assessee filed revised returns only after revenue issued notice under section 143 and, therefore, it should be con....
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.... does not suggest: Another aspect establishing the bonafied and absence of any intention of the assessee not to declare income is also proved from the fact that the declared figure of interest on FDR in A.Y. 2006-07 stood at Rs.38,325/- (PB 35), in A.Y. 2007-08 it was Rs.`Nil` (PB 32) and in A.Y. 2008-09 it was of Rs.2,21,497/- (PB 27), as against Rs.3,27,624/75 in the year under consideration i.e. A.Y. 2009-10. Thus, the income from interest on FDR never reached the whopping figure of Rs.10,43,740/- (PB 6). Similarly, there was no consultancy in earlier years and the rental income was only upto Rs.2 Lakh. 8. Initially no TDS claimed by the assessee: The bonafide of the contention of the assessee and the fact that the assessee never intended to conceal any income at all, is fully established from a bare perusal of computation at the time of filling original ROI (PB 2-3) wherein, the assessee did not at all made any claim of TDS or the computation did not contain any details of TDS, (deducted by Bank, SJVN Ltd and Isolux Ingenieria) for the simple reason that the assessee did not claim any such income which is being declared now. In other words, had the assessee knew such income h....
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....ject and intention of the legislature." 10.2 In the peculiar facts this case, the decision in the case of CIT v/s Reliance Petroproducts (P) Ltd. (2010) 322 ITR 158 (SC) is quite useful in as much as in that case it was held that w.r.t. return "Penalty under s. 271(1)(c)-Concealment-Disallowance of claim for deduction- In order to attract the provisions of s. 271(1)(c), there has to be concealment of income or furnishing of inaccurate particulars of his income by the assessee-In the instant case, assessee claimed deduction of interest on loans taken by it for purchase of shares-AO disallowed such interest-Admittedly, no information given in the return was found to be incorrect or inaccurate-Hence, the assessee cannot be held guilty of furnishing inaccurate particulars-Making an incorrect claim in law cannot tantamount to furnishing of inaccurate particulars-Merely because the assessee claimed deduction which has not been accepted by the Revenue, penalty under s. 271(1)(c) is not attracted-If the contention of the Revenue is accepted, the assessee would be liable for penalty under s. 271(1)(c) in every case where the claim made by the assessee is not accepted by the AO for any....
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.... there were justified reasons behind delayed declaration of additional income from these sources. Hence, it was not improbable if the original return could have been filed beyond the due date of Section 139(1) waiting for the correct and complete information of income to be included, necessitating an upward revision of income. Further had the assessee woke up only after issuance of notice u/s 143(2), he could have filed the revised return immediately but not after a long gap of 5 months i.e. on 31.03.2011. Undisputedly, the assessee is aged 61 years mainly deriving salary income and stationed at Mumbai whereas his chartered accountant was situated at Jaipur. It was a period when there was less or no automation and the department also could not bring on record that every income suffering TDS was being shown through form 26AS in time nor it is shown that Form 16A if issued by all those parties providing income to the assessee, were timely given to the assessee. The contention of the revenue that additional income suffered TDS and, therefore, the assessee should have declared for the income in the original return itself, is far from the ground realities which prevailed at the relevant....