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2011 (7) TMI 594 - AT - Income TaxPenalty u/s 271(1)(c) - re-opening of assessment - addition made by the AO on account of dis-allowance u/s 43B(d) of interest on FCNR loans from scheduled banks - same view taken by auditors in audit report - assessee availed loan form HSBC bank and ICICI Bank - Held that - In present case, assessee took loans from HSBC and ICICI Bank which are not SFC, or State Industrial Investment Corporation. U/s 4A of the Companies Act also, HSBC and ICICI Bank do not figure in the list of Public Financial Institutions. Therefore, provisions of section 43B(d) are not applicable in case of the assessee. Re-opening of the assessment, if challenged could be considered as bad in law as the same is based on change of opinion because AO had already completed assessment u/s 143(3) and made no dis-allowance. In any case, applicability of provisions of section 43A(e) was neither considered by the auditors nor the AO in the original assessment or in the reassessment completed after scrutiny, and therefore, the omission by the assessee to not consider the provisions of section 43B(e) has to be considered as bona fide. Penalty cannot be levied only on the ground that the assessee did not dispute the addition in appeal, order set aside and penalty levied is deleted - Decided in favor of assessee.
Issues Involved:
1. Levy of penalty for concealment of income under section 271(1)(c) of the Income-tax Act. Issue-Wise Detailed Analysis: 1. Levy of penalty for concealment of income under section 271(1)(c) of the Income-tax Act: Facts of the Case: The assessee filed a return of income for the Assessment Year 2001-02, showing an income of Rs. 42,96,10,800. The assessment was completed under section 143(3) at a total income of Rs. 43,20,86,709. The assessment was later reopened under section 147 based on an audit report indicating that the assessee incurred Rs. 64,36,494 towards interest on FCNR loans from scheduled banks, which had not been paid before the due date of filing the return and was liable for disallowance under section 43B(d). Assessing Officer's Findings: The Assessing Officer (AO) completed the reassessment under section 143(3) and initiated penalty proceedings under section 271(1)(c) for concealment of income. The AO observed that the disallowance was clearly reported by the auditors, yet the assessee did not make the disallowance in the original or revised returns. The AO concluded that the assessee was deemed to have concealed particulars of income under Explanation-I to section 271(1)(c) and levied a penalty of Rs. 19,01,608. CIT(A)'s Findings: The CIT(A) upheld the AO's decision, agreeing that the assessee was deemed to have concealed particulars of income. The CIT(A) referred to the Supreme Court judgment in Union of India v. Dharamendra Textile Processors, which held that penalty under section 271(1)(c) is a civil liability, and mens rea is not required to be proved by the revenue. Assessee's Argument: The assessee argued that no mistake was committed in not disallowing the interest on loans from HSBC and ICICI Bank, as these were not Public Financial Institutions as per section 43B(d). The assessee claimed that the disallowance was not required under section 43B(d) and that the AO did not make the disallowance in the original assessment under section 143(3). The assessee also argued that the penalty could not be levied merely because no appeal was filed against the assessment order. ITAT's Analysis: The ITAT noted that penalty proceedings are different from assessment proceedings and that findings in the assessment are not conclusive in penalty proceedings. The ITAT emphasized that each case for penalty must be evaluated under Explanation-I to section 271(1)(c). The ITAT found that the assessee's explanation for not making the disallowance was bona fide. The loans were from HSBC and ICICI Bank, which are not Public Financial Institutions under section 43B(d). The ITAT also noted that the term "term loan" was not defined in the Act, and the loans taken by the assessee were for less than one year, which could be a reason for not applying section 43B(e). Conclusion: The ITAT concluded that the explanation provided by the assessee was bona fide and that penalty could not be levied solely because the assessee did not dispute the addition in appeal. The ITAT set aside the CIT(A)'s order and deleted the penalty. Final Judgment: The appeal of the assessee was allowed, and the penalty levied was deleted.
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