2009 (8) TMI 974 - AT - Income Tax

Summary

Issues involved: Appeal against cancellation of penalty u/s 271(1)(c) by ITAT Mumbai.

Issue 1: Cancellation of penalty u/s 271(1)(c) by Commissioner of Income-tax (Appeals)

The assessee, a company engaged in investment and trading in shares, filed a return declaring a loss. The Assessing Officer disallowed a claim for set-off of business loss, treating it as speculation loss. Penalty u/s 271(1)(c) was imposed for furnishing inaccurate particulars of income. The Commissioner of Income-tax (Appeals) cancelled the penalty, considering the negative income returned and assessed. The Revenue appealed, arguing that the penalty should not have been cancelled.

Issue 2: Retrospective applicability of Explanation 4 to section 271(1)(c)

The ITAT Mumbai held that the cancellation of penalty by the Commissioner of Income-tax (Appeals) was not justified. Referring to the decision in CIT v. Gold Coin Health Food P. Ltd., it was established that Explanation 4 to section 271(1)(c) applied retrospectively, even during the period before its amendment in 2003. The penalty could be levied even if the addition of concealed income reduced the returned loss.

Issue 3: Merits of penalty imposition under section 271(1)(c)

The ITAT Mumbai considered the merits of the penalty imposed by the Assessing Officer. Relying on rule 27 of the Income-tax (Appellate Tribunal) Rules, the assessee argued that the penalty was not sustainable on the merits. Despite the Commissioner of Income-tax (Appeals) rejecting the case, the rule allowed the assessee to support the order on grounds decided against him. The ITAT Mumbai permitted arguments on the merits and decided the matter after hearing both sides.

Issue 4: Comparison with judicial pronouncements

In support of the assessee's case, various submissions and judicial pronouncements were considered. CIT v. Auric Investment and Securities Ltd. was cited, where a similar issue was decided by the Delhi High Court. The Court held that the treatment of business loss as speculation loss did not automatically indicate concealment of income. As the facts were similar to the Auric case, the ITAT Mumbai upheld the cancellation of penalty imposed by the Assessing Officer, leading to the dismissal of the Revenue's appeal.

This judgment highlights the complexities involved in penalty imposition under section 271(1)(c) and the importance of considering legal precedents and rules in such matters.