2015 (12) TMI 43 - AT - Income Tax

Penalty u/s.271(1)(C) - receipts on sale of paintings was not disclosed as income in the return of income filed - Held that - In the penalty proceedings, the Assessee pointed out that the sale of paintings was not done by him as an adventure in the nature of trade. The paintings were kept for years over because of his aesthetic sense. It gave him tremendous pleasure and pride of profession. The paintings were therefore his personal effects . This aspect has not been disputed by the AO. In the statement recorded u/s.131 of the Act by the AO in the course of assessment proceedings, in answer to Question No.11 the assessee has stated that the paintings are made as per creation desire of the assessee. Therefore, it would be proper to accept the contention of the assessee that the paints were his personal effects . The AO has not disputed the position that the source of funds for investment in units of mutual funds was the sale of paintings which were personal effects and therefore income from sale of paintings were capital receipts not chargeable to tax. Therefore, the plea of the assessee that the on the basis of professional advice, receipts from sale of paintings was treated as capital receipt not chargeable to tax, is found to be acceptable. Therefore the plea of the assessee that receipts from sale of paintings were not offered to tax on a bona fide belief is acceptable. Consequential imposition of penalty in so far as, it relates to the addition of ₹ 60,99,454/-, in our view is unsustainable, as there was neither concealment of particulars of income or furnishing of inaccurate particulars of income. The show cause notice u/s. 274 of the Act is defective as it does not spell out the grounds on which the penalty is sought to be imposed. Following the decision of the Hon ble Karnataka High Court in the case of CIT & Anr. v. Manjunatha Cotton and Ginning Factory 2013 (7) TMI 620 - KARNATAKA HIGH COURT , we hold that the orders imposing penalty in all the assessment years have to be held as invalid and consequently penalty imposed is cancelled. - Decided in favour of assessee.

Issues Involved:
1. Imposition of penalty under Section 271(1)(c) of the Income Tax Act, 1961.
2. Non-disclosure of investments in mutual funds.
3. Treatment of bank interest as undisclosed income.
4. Treatment of short-term capital gains as undisclosed income.
5. Validity of the penalty proceedings initiated.

Detailed Analysis:

1. Imposition of Penalty Under Section 271(1)(c):

The Assessee, a professional artist, was imposed a penalty under Section 271(1)(c) of the Income Tax Act, 1961, for AY 2006-07. The penalty was related to the non-disclosure of investments in mutual funds, bank interest, and short-term capital gains. The Assessee argued that he was not aware of the intricacies of tax laws and was advised by his tax consultant that income from the sale of art was not taxable as it was considered personal effects and not a capital asset under Section 2(14)(ii) of the Act.

2. Non-Disclosure of Investments in Mutual Funds:

The Assessee admitted to making investments amounting to Rs. 60,99,454 in various mutual funds, which were not disclosed in the return of income. The source of these investments was the sale of paintings. The AO added this amount to the Assessee's income, leading to the imposition of penalty under Section 271(1)(c). The Assessee argued that the paintings were personal effects and hence not taxable. The Tribunal accepted this argument, noting that the paintings could be considered personal effects, and therefore, the income from their sale was not chargeable to tax.

3. Treatment of Bank Interest as Undisclosed Income:

The AO added Rs. 1,09,473 as undisclosed bank interest to the Assessee's income. The Assessee contended that this interest was already considered while computing the undisclosed investments in mutual funds. The Tribunal found this argument reasonable and concluded that the bank interest should not be treated as a separate undisclosed income.

4. Treatment of Short-Term Capital Gains as Undisclosed Income:

The AO added Rs. 9,79,410 as short-term capital gains from the sale of mutual fund units, which were not disclosed in the return of income. The Assessee argued that these gains were part of the undisclosed investments. The Tribunal agreed with the Assessee, noting that the gains resulted from the investment of bank balances, which were already considered.

5. Validity of the Penalty Proceedings Initiated:

The Tribunal examined whether the AO had properly recorded satisfaction for initiating penalty proceedings under Section 271(1)(c). The Tribunal noted that the AO had not clearly indicated whether the penalty was for concealing particulars of income or furnishing inaccurate particulars of income. The Tribunal referred to the decision of the Karnataka High Court in CIT Vs. Manjunatha Cotton & Ginning Factory, which held that the show cause notice must specify the exact charge. The Tribunal concluded that the penalty proceedings were not initiated correctly and were therefore unsustainable.

Conclusion:

The Tribunal allowed the appeal filed by the Assessee, canceling the orders imposing penalty under Section 271(1)(c) of the Income Tax Act, 1961. The Tribunal found that the Assessee had a bona fide belief that the income from the sale of paintings was not taxable and that the penalty proceedings were not initiated properly. The appeal was allowed, and the penalty was canceled.

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