2015 (11) TMI 1781 - AT - Income Tax

Penalty u/s 271(1)(c) - income of the assessee is brought to tax under the provisions of 115JB and tax was charged on book profits pursuant to these provisions and the disallowances made by the AO under the normal provisions of the act - HELD THAT - The appellant had been assessed u/s115JB Act and the various disallowances made in the assessment order did not have any impact on the tax liability of the assessee.The income computed under the normal provisions of the act is less than the book profits of the assessee. We are of the considered opinion that the penalty u/s 271(1)(c) of the act cannot be levied. The case of the assessee is fortified by the decision of the Delhi High Court v/s Nalwa Sons Ltd. 2010 (8) TMI 40 - DELHI HIGH COURT wherein the income was computed in accordance with normal procedure is less than the income determined special provisions u/s 115JB and thus the income of the assessee was assessed u/s 115JB and not under the normal provisions and the tax was paid accordingly on the income as computed u/s 115JB of the Act. Once the tax is levied on the income of the assessee u/s 115JB then the case the concealed of income have no role to play and would not lead to tax evasion and therefore, penalty cannot be imposed on the basis of disallowances or additions made under regular provisions. Further in the case of CIT v/s City Tiles 2014 (5) TMI 400 - GUJARAT HIGH COURT has held that where the addition to the income of the assessee did not change the tax liability of the assessee as the assessment was made u/s115JB of the book profits penalty could not be imposed. The facts of the assessee are squarely covered by the above decisions and we therefore, respectfully following the decisions of the High Court, we delete the penalty imposed u/s 271(1)(C) by allowing the appeal of the assessee.

Summary

Issues:
1. Validity of Order U/S 271(1)(c)
2. Confirmation of penalty by CIT(A)
3. Penalty on Forfeiture of shares and premium amount
4. Additional Ground: Tax effect on penalty under section 271(1)(c)
5. Admission of additional ground for appeal
6. Imposition of penalty under section 271(1)(c)
7. Impact of tax liability on penalty imposition
8. Applicability of legal precedents in penalty imposition

Issue 1: Validity of Order U/S 271(1)(c)
The appeal challenged the order dated 08-04-2013 by CIT(A) for assessment year 1999-2000, claiming the order U/S 271(1)(c) dated 30-03-2012 was invalid and bad in law.

Issue 2: Confirmation of Penalty by CIT(A)
The appeal contested the penalty of &8377; 1103657/- confirmed by CIT(A) without proper consideration of submissions, including the penalty on Forfeiture of shares and premium amounting to &8377; 1440000/- and disallowance of Depreciation 1105512/-.

Issue 3: Penalty on Forfeiture of Shares and Premium Amount
The penalty under section 271(1)(c) was imposed based on disallowances made by AO and upheld by CIT(A), alleging inaccurate particulars of income by the assessee.

Issue 4: Additional Ground - Tax Effect on Penalty
The additional ground raised questioned the imposition of a penalty under section 271(1)(c) when the tax was computed as per section 115JB, asserting that disallowances under normal provisions did not affect the tax liability.

Issue 5: Admission of Additional Ground
The Tribunal allowed the additional ground for appeal, considering it a legal issue essential to the case as per the decision of the Hon'ble Supreme Court in National Thermal Power Ltd v/s CIT.

Issue 6: Imposition of Penalty under Section 271(1)(c)
The Tribunal noted that the penalty was levied under section 271(1)(c) due to disallowances made by AO, but the income was assessed under section 115JB, where disallowances did not impact the tax liability.

Issue 7: Impact of Tax Liability on Penalty Imposition
The Tribunal held that once tax was levied under section 115JB, penalties could not be imposed based on disallowances under regular provisions, referencing the Delhi High Court and Gujarat High Court decisions.

Issue 8: Applicability of Legal Precedents in Penalty Imposition
Relying on legal precedents, the Tribunal concluded that penalties under section 271(1)(c) could not be imposed if the income was assessed under section 115JB and the disallowances did not alter the tax liability, leading to the deletion of the penalty.

In conclusion, the Tribunal allowed the appeal, deleting the penalty imposed under section 271(1)(c) based on the assessment under section 115JB and the lack of impact of disallowances on tax liability. The decision was pronounced on 20th Nov, 2015.