2017 (11) TMI 1820 - AT - Income Tax

Penalty u/s 271(1)(c) - Deemed dividend addition u/s 2(22) (e) - HELD THAT - AO has levied penalty on the basis of information gathered during the course of assessment proceedings for the AY 2008-09 which revealed that the assessee has borrowed loan from a company in which he was a beneficial shareholder. The said information has been gathered from the financial statement of the assessee. The assessee has disclosed loan borrowed from the company in his balance-sheet. We further notice that the AO has made addition u/s 2(22)(e) for the assessment year 2009-10 for the first time. No such addition has been made in the preceding financial years. The assessee claims that he was under a bonafide belief that deeming fiction provided u/s 2(22)(e) for the purpose of making addition towards loans and advances borrowed from a company in the hands of the director cannot be extended to penalty provisions provided u/s 271(1)(c) to hold that non disclosure of deeming dividends in the return of income would amount to furnishing of inaccurate particulars of income. We find force in the arguments of the assessee for the reason that deeming fiction provided u/s 2(22)(e) for making addition towards loans and advances from a closely held company in the hands of the directors cannot be considered as furnishing of inaccurate particulars of income; despite the assessee has disclosed borrowings from the company in its balance-sheet. AO has made addition for the first time in the financial year under consideration - explanation offered by the assessee that no penalty can be levied towards addition made by invoking deeming provisions for levying penalty appears to be bonafide. - Decided in favour of assessee.

Issues Involved:
1. Incorrect or erroneous details supplied by the assessee.
2. Justification for the levy of tax on deemed dividend.
3. Bonafide belief regarding the nature of the loan.
4. Disclosure of shareholding pattern in the return of income.
5. Acceptance of addition to avoid litigation.
6. Reopening of assessment based on previous findings.
7. Prior acceptance of non-taxability under Section 2(22)(e).
8. Repeated penalty on similar facts.
9. Awareness of the issue by the Income Department.
10. Specificity of grounds in the notice under Section 274.
11. Use of a printed form for the notice.

Detailed Analysis:

1. Incorrect or Erroneous Details Supplied by the Assessee:
The assessee argued that there was no finding in the assessment or penalty order that any details supplied in the return were incorrect, erroneous, false, or inaccurate. The Tribunal noted that the assessee had disclosed the loan in the balance sheet, indicating no concealment or furnishing of inaccurate particulars.

2. Justification for the Levy of Tax on Deemed Dividend:
The penalty order reiterated the facts and justified the levy of tax on deemed dividend. The Tribunal observed that the addition was based on the financial statements and balance sheet filed by the assessee, which means the necessary particulars were disclosed.

3. Bonafide Belief Regarding the Nature of the Loan:
The assessee contended that the loan was taken in the normal course of business and repaid when funds were available. The Tribunal found the explanation offered by the assessee to be bona fide, as the addition was made for the first time in the relevant assessment year.

4. Disclosure of Shareholding Pattern in the Return of Income:
The assessee argued that there was no column in the return to show the shareholding pattern and that it was disclosed during assessment proceedings. The Tribunal noted that the shareholding pattern was disclosed in the balance sheet and financial statements.

5. Acceptance of Addition to Avoid Litigation:
The assessee accepted the addition to buy peace with the department and avoid litigation. The Tribunal acknowledged this point but focused on the disclosure of the loan in the balance sheet.

6. Reopening of Assessment Based on Previous Findings:
The assessment was reopened based on findings from the previous year. The Tribunal noted that the addition for deemed dividend was made for the first time in the relevant assessment year, and the assessee had disclosed the loan in the balance sheet.

7. Prior Acceptance of Non-Taxability under Section 2(22)(e):
The assessee argued that the tax was not payable under Section 2(22)(e) in previous years, and no penalty was levied. The Tribunal found that the addition was made for the first time in the relevant assessment year, and the assessee had disclosed the loan in the balance sheet.

8. Repeated Penalty on Similar Facts:
The assessee contended that penalty was levied again on similar facts. The Tribunal found that the addition was made for the first time in the relevant assessment year, and the assessee had disclosed the loan in the balance sheet.

9. Awareness of the Issue by the Income Department:
The assessee argued that the Income Department was aware of the issue based on submissions from previous years. The Tribunal noted that the addition was made for the first time in the relevant assessment year, and the assessee had disclosed the loan in the balance sheet.

10. Specificity of Grounds in the Notice under Section 274:
The assessee contended that the notice under Section 274 did not specifically state the grounds for penalty. The Tribunal did not specifically address this issue but focused on the disclosure of the loan in the balance sheet.

11. Use of a Printed Form for the Notice:
The assessee argued that a printed form with all grounds mentioned in Section 271 was used. The Tribunal did not specifically address this issue but focused on the disclosure of the loan in the balance sheet.

Conclusion:
The Tribunal found that the assessee had disclosed the loan in the balance sheet, and the addition was made for the first time in the relevant assessment year. The explanation offered by the assessee was considered bona fide, and the deeming fiction under Section 2(22)(e) could not be extended to the penalty provisions under Section 271(1)(c). Therefore, the Tribunal directed the AO to delete the penalty levied under Section 271(1)(c). The appeal filed by the assessee was allowed.

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