2020 (1) TMI 1170 - AT - Income Tax

Penalty u/s 271(1)(c) - tax payable on income computed under normal provisions of the Act is less than, the tax payable under the deeming provisions of section 115JB - HELD THAT - We find that the Hon ble Delhi High Court, in the case of Nalwa sons Investments Ltd. Vs CIT 2010 (8) TMI 40 - DELHI HIGH COURT held that when, the tax payable on income computed under normal provisions of the Act is less than, the tax payable under the deeming provisions of section 115JB then penalty u/s 271(1)(c) could not be imposed with reference to additions/disallowances made under normal provisions of the Act - CBDT had issued a circular No. 25/2015, dated 31/12/2015, where it has accepted the judgment of Hon ble Delhi High Court and accordingly, issued a circular explaining the position of law before insertion of Explanation 4 to sub section (1) of section 271(1)(c) of the I.T. Act, 1961 by the Finance, Act, 2015, which provide for method of calculating the amount of tax sought to be evaded for situations, where the income determined under the normal provision is less than the income declared for the purpose of MAT provisions u/s 115JB - where the income tax payable on the total income as computed under the normal provisions of the Act is less than the tax payable on the book profits u/s 115JB of the Act, then penalty u/s 271(1)(c) of the Act is not attracted with reference to additions/disallowances made under normal provisions of the Act. In this case, it is an admitted fact that the Ld. AO has made additions towards unexplained cash credit u/s 68 of the Act to income computed under normal provisions of the Act. Further, even after additions, the tax payable under normal provisions of the Act is less than, the tax payable under the provisions of section 115JB of the I.T. Act, 1961. Therefore, we are of the considered view that penalty u/s 271(1)(c) of the Act, cannot be levied with reference to additions/ disallowances made to total income computed under normal provisions of the Act. Hence, we direct the Ld. AO to delete penalty levied u/s 271(1)(c) - Decided in favour of assessee.

Summary

Issues involved:
1. Confirmation of penalty under section 271(1)(c) by Ld. Commissioner of Income Tax (Appeals)
2. Imposition of penalty under section 271(1)(c) in absence of proper notice and justification for penalty
3. Assessment of income under section 115JB and its impact on penalty imposition
4. Principles of natural justice in penalty proceedings

Issue 1: Confirmation of penalty under section 271(1)(c) by Ld. Commissioner of Income Tax (Appeals):
The appeal filed by the assessee challenged the order of the Ld. Commissioner of Income Tax (Appeals) confirming the penalty imposed under section 271(1)(c) of the Income Tax Act. The Ld. CIT(A) upheld the penalty by relying on the decision of the Hon'ble Delhi Court in the case of CIT vs. Zoom Communications Private Limited. The Ld. CIT(A) concluded that the explanation provided by the assessee was not found to be bona fide, invoking Explanation (1) to section 271(1)(c) which holds the assessee liable for penalty if the explanation offered is false or unsubstantiated.

Issue 2: Imposition of penalty under section 271(1)(c) in absence of proper notice and justification for penalty:
The assessee contended that the penalty proceedings were initiated without a proper notice issued under section 271(1)(c) read with section 274 of the Income Tax Act. Additionally, the assessee argued that there was no concealment or furnishing of inaccurate particulars of income, which are prerequisites for levying penalty under section 271(1)(c). However, the Ld. CIT(A) upheld the penalty imposed by the Assessing Officer, leading to the appeal before the tribunal.

Issue 3: Assessment of income under section 115JB and its impact on penalty imposition:
The assessee's income was assessed under section 115JB of the Income Tax Act, which affected the imposition of the penalty under section 271(1)(c). The Ld. AR for the assessee contended that no penalty should have been imposed as per the decision of the Hon'ble Delhi High Court in the case of CIT vs. Nalwa Sons Investments Ltd and the CBDT circular No. 25/2015. The tribunal considered these arguments and concluded that when the tax payable on income computed under normal provisions is less than the tax payable under section 115JB, penalty under section 271(1)(c) cannot be imposed based on additions/disallowances made under normal provisions.

Issue 4: Principles of natural justice in penalty proceedings:
The assessee raised concerns regarding the violation of principles of natural justice in the penalty proceedings, stating that the Assessing Officer imposed the penalty without providing copies of materials relied upon or an opportunity to cross-examine witnesses. The tribunal referred to the judgment of the Hon'ble Supreme Court in Andaman Timber Industries v. Commissioner of Central Excise, emphasizing the importance of adhering to natural justice principles in such cases.

In conclusion, the tribunal allowed the appeal filed by the assessee, directing the Assessing Officer to delete the penalty imposed under section 271(1)(c) of the Income Tax Act, 1961. The decision was based on the assessment of income under section 115JB and the inapplicability of the penalty in the given circumstances where the tax payable under normal provisions was less than the tax payable under section 115JB.